A Dying Practice

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A crater and fragmentation marks consistent with a cluster muntion strike remain five days after an August 12, 2008, attack on the main square of Gori, Georgia. Russia struck the square with an Iskander cluster munition missile, killing six civilians and injuring 24 more.

Summary

During their August 2008 conflict over the breakaway region
of South Ossetia, both Russia and Georgia used cluster munitions, a weapon that
the international community was in the process of banning. Together, their
cluster munitions killed at least 16 civilians and injured at least 54 more in
Georgia south of the South Ossetian administrative border, at the time they
were fired or afterwards. Civilians remain at risk as deminers expect to be
clearing submunitions from 15 million square meters of contaminated land until
at least August 2009. The use of cluster munitions in Georgia was a vivid
reminder of why this notorious weapon should be categorically prohibited, not
merely regulated.

While the quantity of cluster munitions fired and the
numbers of casualties they caused may not rise to the levels of some recent
conflicts, notably Lebanon (2006) and Iraq (2003), their use again exemplified
the dangers inherent to the weapon. As is generally the case, the cluster
munitions were used in many populated areas. They caused significant civilian
casualties during and after the war. They also left large numbers of unexploded
submunitions that threaten lives and livelihoods for months to come. Their use
by both sides of the conflict and the relatively small size of the battle area
amplified the impact of the attacks.

These events came less than three months after 107 states
from around the world adopted the Convention on Cluster Munitions, which
comprehensively bans the weapon. Neither Russia nor Georgia took part in that
process, and their use of cluster munitions was in defiance of an emerging
consensus on a basic prohibition on the weapon.

During research missions at the time of the conflict in
August and also in the Gori and Kareli districts of Georgia in September and
October, Human Rights Watch documented Russian use of cluster munitions in or
near seven towns and villages and Georgian cluster munitions in or near nine.
In March 2009 Norwegian People’s Aid (NPA) reported evidence of Russian
cluster munitions from the August 2008 conflict in two additional villages.
Human Rights Watch researchers took extensive testimony from about 100
witnesses, deminers, and military and government officials and examined
physical evidence. They concluded that Russian weapons caused most of the civilian
casualties at the time of the strikes and Georgian cluster munitions killed and
injured civilians after, as well as during, attacks.

Cluster munitions are large, ground-launched or air-dropped
weapons that, depending on their type, contain dozens or hundreds of
submunitions. During strikes they endanger civilians because they blanket a
broad area, and when they are used in or near populated areas, civilian
casualties are virtually guaranteed. They also threaten civilians after
conflict because they leave high numbers of hazardous “duds,” that
is submunitions that have failed to explode on impact as designed, which
unwitting civilians can easily set off.

Russia used two types of Russian-produced submunitions: the
air-dropped AO-2.5 RTM and the ground-launched 9N210. According to an
investigation by the Ministry of Foreign Affairs of the Netherlands into the
death of a Dutch cameraman in Gori, the Russians also used the
surface-to-surface Iskander (or SS-26) missile that carries an unknown model of
submunition. Georgia used M85 submunitions delivered by Mk.-4 160mm rockets,
which it bought from Israel.

Human Rights Watch found that Russian forces fired many of
their cluster munitions into populated areas of Georgia. On August 8 and 12,
2008, Russian submunitions landed in neighborhoods in the town of Variani,
killing three civilians and wounding sixteen, ranging in age from eight years
to seventy. Among them was 13-year-old boy, Beka Giorgishvili, who went to a
friend's house to say goodbye before his family fled town. An explosion went
off as he was helping pump up his friend's new bike tire. Beka lost part of his
skull and suffered brain damage; shrapnel remains lodged in his head.

Russian cluster munitions killed an additional nine
civilians and injured thirty in strikes on Gori city and Ruisi on August 12.
The Gori attack hit the main square of the city as a crowd of locals and
journalists was gathering. The Ruisi attack hit two ends of the town, not only
causing civilian casualties but also leaving duds with a 35 percent failure
rate in at least one area being cleared.

Despite the evidence from Human Rights Watch, the Dutch
government investigation, and clearance organizations, Russia has repeatedly
denied using cluster munitions “in the area of the Georgian-Ossetian
conflict.”

While initially only condemning Russia’s use, in
response to Human Rights Watch inquiries, Georgia publicly acknowledged on
September 1 deploying ground-launched Mk.-4 160mm rockets carrying M85
submunitions. According to the then first deputy minister of defense, Batu
Kutelia, Georgia fired these rockets only at Russian forces between Tskhinvali,
the capital of South Ossetia, and the Roki Tunnel on the border with Russia.
Human Rights Watch has not independently verified this claim.

Human Rights Watch, as well as Georgian military deminers
and international demining organizations, however, found M85 submunitions
farther south. Human Rights Watch gathered extensive evidence of Georgian M85
submunitions and Mk.-4 160mm carrier rockets in populated areas along the
Gori-Tskhinvali corridor south of the South Ossetian administrative border.
These weapons killed at least one civilian and wounded at least two when they
landed on the villages of Tirdznisi and Shindisi. Since the attacks,
submunition duds, which in March 2009 still littered the area, have killed at
least three civilians and wounded at least six in three towns. In Brotsleti in
August 2008, for example, a farmer on his way to his field met a friend holding
two M85s. The submunitions exploded, killing his friend instantly. The farmer
himself suffered serious injuries, but moving a few steps away to answer his
cell phone saved his life.

In October 2008 then-First Deputy Minister of Defense
Kutelia could not explain the presence of Georgian cluster munitions in the
area south of the South Ossetian administrative border. He said that Georgia
was conducting an investigation and indicated the government would ask the
Israeli company from which they bought the weapons to assist. In February 2009
the Georgian Ministry of Defense confirmed Kutelia’s information and
wrote to Human Rights Watch that its investigation was ongoing. The results of
this study should be made public.

The evidence of Georgian forces’ cluster munition use found
by Human Rights Watch was not consistent with typical cluster munition use. The
rockets landed short of their minimum range, there were more M85 duds than M85s
that exploded on impact, many of these duds were in an unarmed state, and
witnesses did not report Russian troops in the area of the Georgian strikes.
Widespread failure of the munitions, due to technical or human error, is one
possible explanation of these factors. The Georgian Ministry of Defense said in
February 2009 that it is investigating the possibility of “failure of the
weapons system.”

In addition to documenting civilian casualties, Human Rights
Watch researchers investigated the socioeconomic effects of cluster munition
use. During their field missions, they found many submunitions launched by both
sides that had failed to explode. Such duds remained hidden in fields of
cabbages, tomatoes, and other crops, and farmers said they feared going into
their fields. Deminers estimated in February 2009 that it would take at least
until August 2009 to clear the area of duds. The threat of duds has caused
civilians to lose harvests and, therefore in some cases, their ability to feed
their families. Submunitions have cost livelihoods as well as lives.

Because of the ongoing danger of duds, efficient and
effective clearance is imperative. Russian troops did extensive clearance in
the Gori District before they withdrew to the South Ossetian administrative
border on October 10. Russia should now provide assistance in other ways. The
Georgian military contributed to initial clearance after the Russian
withdrawal. International deminers are now conducting clearance, but they have
faced several obstacles, such as winter weather, unskilled clearance by
community members, and a shortage of reliable data.

International humanitarian law, also known as the laws of
war, governs conduct during armed conflict. It requires belligerents to
distinguish between combatants and non-combatants and prohibits as
“indiscriminate” any attacks that fail to do so. Cluster munition
attacks in or near populated areas should be presumed indiscriminate. These
inaccurate and unreliable weapons, which have a large area effect, cause
foreseeable civilian casualties during strikes and afterwards. Human Rights
Watch believes there should similarly be a rebuttable presumption that cluster
munition strikes in or near populated areas are unlawfully
“disproportionate,” that is their expected civilian harm outweighs
anticipated military advantage.

Russia, which deployed the weapons in circumstances in which
they were incapable of distinguishing between civilian and military objects,
violated international humanitarian law with its use of cluster munitions. Its
attacks in or near villages, towns, and one city were inherently indiscriminate
and thus unlawful. They were also likely disproportionate. The lack of evidence
of Georgian troops in the vicinity of Russian strikes at the time they occurred
combined with the foreseeable civilian harm supports such a presumption in this
case.

Because Human Rights Watch did not conduct, for reasons
explained in the methodology section, an in-depth investigation of the area
that Georgian officials acknowledged targeting with cluster munitions, it is
unable to assess whether use of the weapon in this area was in violation of
international humanitarian law. If the Georgian military intentionally launched
its submunitions on the towns and villages in Georgia where Human Rights Watch
found them, those strikes would have violated international humanitarian law.
Even if their presence in populated areas is attributable to failure, however,
it underscores the unacceptable danger of these weapons. In particular, the
weapons’ large number of submunitions exacerbates the harm caused when
cluster munitions fail.

Russia and Georgia must also consider their legal
obligations under Protocol V to the Convention on Conventional Weapons (CCW),
which establishes standards for dealing with explosive remnants of war (ERW),
such as cluster munition duds. Russia formally submitted its consent to be
bound by the protocol on July 21, 2008, and the instrument took effect for it
six months later. Georgia gave its consent to be bound on December 22, 2008.
Although it will not enter into force for Georgia until June 2009, in the meantime,
Georgia must not “defeat the object and purpose” of the protocol.

Under this instrument, the duties of user states include
“provid[ing] where feasible” assistance for clearance of ERW,
including submunitions. This assistance should include sharing information
about the types, numbers, and locations of cluster munitions used to facilitate
clearance. Affected states parties must also take “all feasible
precautions” to protect civilians, including through risk education, and
all states parties “in a position to do so” must provide assistance
for clearance and risk education.

In addition to raising concerns under existing law, Russian
and Georgian use of cluster munitions ran afoul of the standards enshrined in
the new Convention on Cluster Munitions. In May 2008, before the conflict in
Georgia, 107 nations, including large numbers of users, producers, and
stockpilers of cluster munitions, negotiated and formally adopted this
convention. It comprehensively prohibits the use, production, trade, and stockpiling
of cluster munitions. It also establishes remedial measures, such as those for
clearance, risk education, and victim assistance, in order to minimize the
aftereffects of past use. The treaty, which opened for signature in Oslo on
December 3, 2008, has been signed by 96 countries and ratified by six as of
March 2009.

Neither Russia nor Georgia participated in the negotiation
process, and the treaty has not yet entered into force, but its signing by 96
states demonstrates widespread support among many nations for its principles.
The Convention on Cluster Munitions is the best tool for preventing future use
of these weapons and thereby mitigating and ultimately eliminating their
effects on civilian populations. The humanitarian harm caused by cluster munitions
in Georgia should serve as an impetus for states to sign and ratify it.

Russia and Georgia should sign and ratify the Convention on
Cluster Munitions as soon as possible. Doing so has the added benefit of making
parties affected by this conflict eligible for international assistance for
remedial measures, including clearance and risk education. If they cannot
commit at this point, Russia and Georgia should take immediate interim measures
to minimize the humanitarian harm of cluster munitions. In compliance with the
rules on targeting under the laws of war, they should make no future use of
cluster munitions in populated areas, and they should prohibit future
production and transfer, begin destruction of stockpiles, and adopt remedial
measures to ensure civilians do not die from the duds they left behind. Most
urgently, they should provide assistance for clearance in Georgia, including if
necessary in South Ossetia. This assistance should include providing exact
information on the location, types, and numbers of cluster strikes for
international deminers.

Russia and Georgia should also conduct independent,
impartial, and rigorous investigations into their use of cluster munitions and
make public the findings. They should address the effects and legal
implications of their cluster munition use. Russia should acknowledge its
military’s use of cluster munitions in Georgia and accept responsibility
for its actions. A Russian investigation should include a thorough examination
of whether individual commanders bear responsibility for the international
humanitarian law violations that resulted from indiscriminate and
disproportionate cluster munition attacks. For Georgia, an investigation should
not only examine possible violations of international humanitarian law but also
consider the possibility of a massive failure of cluster munitions and what
caused it. Moscow should provide information about Georgian cluster munitions
that landed in territory under Russia’s effective control, such as the
types, numbers, and locations of submunitions found, and Tbilisi should do the
same with regard to Russian cluster munitions. As mentioned above, Russia and
Georgia should also provide strike data on their own cluster munitions. Both
countries should ensure their investigations are transparent and open to public
scrutiny.

Other states committed to ending the humanitarian harm of
cluster munitions, like that which occurred in Georgia, should join the
Convention on Cluster Munitions as soon as possible. The treaty will establish
binding provisions as soon as it enters into force, six months after its
thirtieth ratification. Supporters of the ban should also join the convention
in order to increase its influence on non-states parties and to stigmatize the
weapon. Stigmatization based on ban treaties has reduced use of other weapons,
including antipersonnel landmines, and has the potential to do the same with
cluster munitions. By signing and ratifying the treaty, states can signal to
peers, including Russia and Georgia, that use of these weapons is considered
internationally unacceptable and unlawful.

Methodology

Human Rights Watch carried out extensive on-the-ground
research in Georgia for this report. It also drew on more than a decade of
field and documentary research on cluster munitions.

Human Rights Watch researchers were in Georgia during the
conflict and were the first to confirm Russia’s use of cluster munitions
when they documented the attacks in Gori and Ruisi. They did further research
after the August 12, 2008 ceasefire, traveling to locations along the
Gori-Tskhinvali corridor south of the South Ossetian administrative border. In
October they conducted an intensive 10-day mission to survey the extent of the
humanitarian harm from cluster munitions. Researchers investigated both
casualties at the time of the attack and the ongoing aftereffects of the
submunitions, including loss of lives and interference with farming.

Human Rights Watch conducted several fact-finding missions
to South Ossetia to document international humanitarian law violations by
Georgian, Russian, and South Ossetian forces for a report released on January
23, 2009; it did not conduct a separate fact-finding mission to South
Ossetia specifically to investigate Georgia's use of cluster munitions in that
region. Human Rights Watch had already gathered extensive information on damage
caused by Georgian cluster munitions south of the South Ossetian administrative
border. There were no reports from South Ossetia, including from the press or
government authorities, that cluster munitions were causing humanitarian harm
there. Human Rights Watch researchers investigating international humanitarian
law violations in South Ossetia encountered only one report of cluster
munitions use, which is included in this report, and no reports of civilian
casualties caused by them. In an October 13, 2008 letter to the Russian
minister of defense about several issues regarding the conflict, Human Rights
Watch directly asked for information about Georgian use of cluster munitions in
South Ossetia, territory under effective Russian control. The ministry's
response on January 30, 2009, did not address the question. A February 27, 2009
letter from the Russian Prosecutor General’s Office mentioned Georgian
use of cluster munitions in civilian areas but provided no information on
civilian casualties or humanitarian impact. These factors, combined with
logistical and other difficulties, suggested to Human Rights Watch that a
separate mission to South Ossetia was not warranted.

In October 2008 Human Rights Watch researchers visited 19 of
the 20 Georgian towns and villages, all south of the South Ossetian
administrative border, that HALO Trust listed as facing an “immediate
explosive hazard,” like that caused by clusters munitions. They
documented cluster munition use in 15 of those towns. Researchers analyzed
physical evidence of the strikes, including unexploded submunitions, debris
from exploded submunitions, pieces of carrier munitions, and damage to nearby
structures. They took photographs and global positioning system (GPS)
coordinates at every location. They interviewed dozens of civilians who had
been directly affected by the cluster munition attacks, including numerous men,
women, and children who had been injured by submunitions or submunition duds.
Researchers also met with demining experts who are clearing duds and
coordinating clearance efforts.

Finally, Human
Rights Watch researchers conducted interviews with Georgian government and
military authorities, including then-First Deputy Minister of Defense Kutelia,
and exchanged formal letters with the government. They also met with the new
minister of defense of Georgia in January 2009.

Human Rights Watch has contacted Russian authorities by
letter and informally in person at CCW meetings. The Russian Foreign Ministry
responded in a letter dated January 30, 2009, again denying use of cluster
munitions.

Recommendations

Human Rights Watch makes the following recommendations to
mitigate the humanitarian harm caused by cluster munitions in this conflict and
to help ensure that such harm never happens again.

To the Government of Russia

·Sign the Convention on Cluster Munitions,
which opened for signature on December 3, 2008, and ratify it as soon as
possible thereafter.

·Initiate interim national measures to
address the harm of cluster munitions. These measures should include: banning
use in populated areas; prohibiting future production and transfer; and
starting destruction of Russia’s stockpiles.

·Acknowledge that Russian forces used cluster
munitions in Georgia.

·Provide assistance with remedial measures,
such as clearance, to ensure civilians are not killed or injured by the duds
left behind in Georgia. Such assistance should ideally meet the standards of
the Convention on Cluster Munitions, but should at least follow the provisions
laid out in CCW Protocol V, which entered into force for Russia in January
2009. According to both instruments, Russia should provide technical,
financial, material, or human assistance for clearance.

·Immediately provide to the demining
organizations on the ground in Georgia the specific locations of cluster
munition attacks and the specific types and quantities of weapons used, in
order to facilitate clearance and risk education activities.

·Investigate impartially and independently
Russian forces’ use of cluster munitions in Georgia. Such an
investigation should assess carefully whether the munitions were used in a
manner consistent with international humanitarian law. It should address
questions about deliberate use in populated areas; the types, quantity, and
reliability of cluster munitions used; the specific military objectives for
each attack (or lack thereof); whether separate and distinct military
objectives were treated as a single one for the purpose of bombardment; and
whether there was knowing or reckless disregard for the foreseeable effects on
civilians and other protected objects. The results of the investigation should
be made public.

·Follow through on the pledge to investigate
the attack on Gori and make the results of that investigation public.

·Hold accountable, including through
disciplinary action or prosecution if the facts warrant, those responsible for
using cluster munitions in violation of international humanitarian law.

To the Government of Georgia

·Sign the Convention on Cluster Munitions,
which opened for signature on December 3, 2008, and ratify it as soon as
possible thereafter.

·Initiate interim national measures to
address the harm of cluster munitions. These measures should include: banning
use in populated areas; prohibiting future production, import, and export;
starting destruction of Georgia’s stockpiles; and adopting remedial
measures to ensure civilians are not killed or injured by the duds it left on its
own soil.

·Coordinate with international demining
organizations, including by providing details on the clearance done by the
Georgian military and providing information on the specific locations of
cluster munitions attacks and the specific types and quantities of weapons
used, in order to facilitate clearance and risk education activities. Its
performance of remedial measures should ideally meet the standards of the
Convention on Cluster Munitions, but should at least follow the provisions laid
out in CCW Protocol V, which will enter into force for Georgia in June 2009.

·Provide assistance with any remedial
measures necessary in South Ossetia, including by providing strike data to
those in charge of clearance. Such assistance should ideally meet the standards
of the Convention on Cluster Munitions, but should at least follow the
provisions laid out in CCW Protocol V.

Investigate impartially and independently Georgian use of
cluster munitions. Such an investigation should assess carefully whether
the munitions were used in a manner consistent with international
humanitarian law. It should address questions about deliberate use in
populated areas; the types, quantity, and reliability of cluster munitions
used; the specific military objectives for each attack (or lack thereof);
whether separate and distinct military objectives were treated as a single
one for the purpose of bombardment; and whether there was knowing or
reckless disregard for the foreseeable effects on civilians and other
protected objects. It should include the findings of the ongoing
investigation into how Georgian cluster munitions landed in populated
areas of Gori District, which should consider why the rockets landed where
they did, why the submunitions had such high failure rates, and why the
submunitions did not have self-destruct devices. The government should
ensure that the investigation is independent and open to public scrutiny.

If violations of international humanitarian law are found,
hold accountable, including through disciplinary action or prosecution if
the facts warrant, those responsible for using cluster munitions in
violation of international humanitarian law.

To All Governments

Sign, ratify, and implement the Convention on Cluster
Munitions as soon as possible.

Technical and Legal Background on Cluster Munitions

Cluster munitions are large weapons containing dozens or
hundreds of smaller submunitions. After being dropped from the air or fired
from the ground, parent cluster munitions open in the air, releasing and
dispersing their submunitions over a wide area. The submunitions from
air-dropped cluster munitions (delivered by a variety of aircraft) are called
bomblets, and those from ground-launched cluster munitions (delivered by
artillery, mortar, rocket, and missile systems) are sometimes called grenades.
Generally, both cluster munitions and their submunitions are unguided weapons.

Cluster munitions are notorious for the humanitarian harm
they cause. They kill and injure civilians during attacks because of their
broad area effect. They cause additional casualties after the fact because they
leave large numbers of explosive duds. Human Rights Watch field researchers
have documented civilian casualties from the weapon in Kosovo, Afghanistan,
Iraq, Lebanon, and Israel.[1]
In the August 2008 conflict in Georgia, both sides—Russia and
Georgia—used cluster munitions. Again cluster munitions killed and
injured civilians.

The use of cluster munitions often violates existing
international humanitarian law. The laws of war prohibit means and methods of
warfare that fail to distinguish between combatants and non-combatants,
including using certain weapons in an inherently indiscriminate way. While not
addressing use of cluster munitions, a CCW protocol lays out obligations
designed to reduce the post-conflict danger of weapons. Strengthening and
clarifying the law, the new Convention on Cluster Munitions goes further. It
comprehensively bans cluster munitions and establishes remedial measures to
alleviate the harm they cause to civilians. Although it has not yet entered
into force, the treaty creates norms agreed to by 107 states at its adoption in
May 2008. It was opened for signature on December 3, 2008, in Oslo and, as of
March 2009, had been signed by 96 countries.

Cluster Munitions and their Humanitarian Effects

Cluster munitions are designed to blanket a wide area with
explosive submunitions. The military values cluster munitions precisely because
of this area effect. The weapons can destroy broad targets, including airfields
and surface-to-air missile sites. They are also used against moving targets or
those with imprecise locations, such as tanks and troops. Another benefit for
the military is that many submunitions have multiple purposes; they are often
both antipersonnel and anti-armor weapons.The military advantages of
cluster munitions, however, must be weighed against harm to civilians and
civilian property both during and after strikes.

The humanitarian effects of a cluster munition attack are
often more serious than those of attacks using other types of weapons because
of the wide dispersal of submunitions. Even if a cluster munition hits its
target, which is not guaranteed because it is usually unguided, the
submunitions may kill or injure civilians within the intended footprint. The
inherent risks to civilian life and property increase when a military uses
cluster munitions in or near populated areas, a common occurrence. If cluster
munitions are used in an area where combatants and civilians commingle,
civilian casualties are almost assured.

Cluster munitions also have problematic aftereffects because
many submunitions do not explode upon impact as intended. All weapons have some
rate of failure, but cluster munitions present greater danger due to the large
number of submunitions released. In addition, certain design characteristics,
based on cost and size considerations, increase the likelihood of submunition
failure. Manufacturers and militaries have typically indicated that failure
rates for submunitions under test conditions range between 5 and 20 percent;
however, under real combat conditions, actual failure rates tend to be even
higher. As a result every cluster munition strike leaves unexploded
submunitions. The initial failure, or dud rate (that is the percentage of
submunitions that do not explode), not only reduces the immediate military
effectiveness of cluster munitions but also puts civilians at great risk. Given
the highly unstable nature of unexploded submunitions, they may explode at the
slightest touch or movement. Often hidden by foliage, mud, or other features of
the environment, these submunitions become de facto landmines, killing or
injuring civilians returning to the battle area after an attack. Duds cause
socioeconomic harm as well as casualties because they prevent civilians from
safely using their land and harvesting their crops.

Existing International Humanitarian Law

During the armed conflict between Russia and Georgia in
August 2008, the military forces of both parties were bound under international
humanitarian law to respect and protect civilians and other persons not or no
longer directly taking part in hostilities. The law also restricted the means
and methods of warfare to which they could resort. With regard to the
protection of civilians in times of armed conflict, the most relevant
international humanitarian law provisions are in the four Geneva Conventions of
1949 and their First Additional Protocol of 1977; Russia and Georgia are both
party to these instruments.[2]

The Principle of Distinction

The principle of distinction is one of the keystones of the
law regulating protection of civilians during hostilities. It requires parties
to a conflict to distinguish at all times between combatants and civilians.[3]
Parties may not attack civilians or civilian objects and may only direct
attacks against military objectives.[4]
Military objectives are members of the armed forces, other persons taking a
direct part in hostilities, and “those objects which by their nature,
location, purpose or use make an effective contribution to military action and
whose total or partial destruction, capture or neutralization, in the
circumstances ruling at the time, offers a definite military advantage.”[5]
The laws of war prohibit attacks “of a nature to strike military objectives
and civilians or civilian objects without distinction.”[6]

Attacks that violate the principle of distinction are
considered indiscriminate and unlawful. Indiscriminate attacks include those
that “are not directed at a specific military objective,” those
that “cannot be directed at a specific military objective,” and
those that “employ a method or means of combat the effects of which
cannot be limited.”[7]
Bombardments that treat as a single military objective a number of clearly
separated and distinct targets are indiscriminate as well.[8]

Proportionality is a related principle of international
humanitarian law. Attacks that violate the principle of proportionality are
indiscriminate because they are “expected to cause incidental loss of
civilian life, injury to civilians [or] damage to civilian
objectives…which would be excessive in relation to the concrete and
direct military advantage anticipated” from that attack.[9]

Feasible Precautions

When conducting military operations, parties to a conflict must
also take “constant care” to spare the civilian population and
civilian objects from the effects of hostilities. For example, belligerents
must take “all feasible precautions” to minimize harm to civilians
when choosing their means and methods of warfare, and they must refrain from
launching disproportionate attacks.[10]
The enemy’s failure to respect one or more of these precautions does not
permit the other party to the conflict to ignore precautions on its side.

International Humanitarian Law
Applied to Cluster Munitions

Indiscriminate Use of Cluster Munitions

Cluster munitions raise serious concerns under numerous
provisions of international humanitarian law. Cluster munition strikes in or
near civilian population centers should be presumed indiscriminate because the
weapons cannot be precisely targeted at specific military objectives and, in
particular, the submunitions are almost always unguided. When cluster munitions
are fired into civilian areas, civilian casualties and damage to civilian
infrastructure are extremely difficult to avoid. They thus violate the rule
that prohibits attacks that use a method of warfare that “cannot be
directed at a specific military objective.”[11]

Whether a cluster strike is discriminate must be judged not
only on its immediate impact but also on its aftereffects. Submunition duds do
not distinguish between combatants and civilians and will likely injure or kill
whoever disturbs them. The effects become more dangerous if the submunitions
litter an area frequented by civilians or the dud rate is high (due to poor
design, age, use in inappropriate environments, or delivery from inappropriate
altitudes or distances). The large number of submunitions released by cluster
munitions combined with a high dud rate makes the aftereffects in or near
civilian areas particularly deadly. In that situation in particular, the
unexploded duds raise concerns under the international humanitarian law
provision that prohibits attacks that “employ a method or means of combat
the effects of which cannot be limited.”[12]

Disproportionate Use of Cluster Munitions

The lawfulness of an attack may also be determined by its
disproportionate effect on civilians. A cluster attack will be unlawfully
disproportionate if expected civilian harm outweighs anticipated military
advantage. Attacks in or near populated areas are particularly likely to be
disproportionate given their predictable civilian casualties at the time of a
strike.

Expected civilian harm encompasses casualties over time as
well as immediate civilian losses.[13]
It is increasingly accepted that long-term effects should be a factor in
judging the proportionality of cluster munition attacks, and the long-term
effects of cluster munitions are foreseeable.[14] The preamble of
the final declaration of the Third Review Conference of States Parties to the
CCW recognizes “the foreseeable effects of explosive remnants of war on
civilian populations as a factor to be considered in applying the international
humanitarian law rules on proportionality in attack and precautions in
attack.”[15]
States parties, including Georgia and Russia, adopted this language on November
17, 2006.

Taking into account both strike and post-strike civilian
harm greatly increases the likelihood that the harm will be excessive in relation
to the military advantage sought. It is especially true if an attack occurred
in or near a populated area or in an area to which people might return. Based
on its field research in Yugoslavia, Afghanistan, Iraq, and Lebanon, as well as
Georgia, Human Rights Watch believes that when cluster munitions are used in
any type of populated area, there should be a strong, if rebuttable,
presumption that the attack is disproportionate.[16]

The Requirement to Take Precautions

States are legally bound to take “all feasible
precautions” to minimize civilian harm. Given that cluster munition use
in or near populated areas virtually guarantees civilian harm, it should be
considered unlawful under this requirement.

Protocol V on Explosive Remnants of War

Protocol V on ERW, an instrument attached to the CCW,
applies to cluster munitions. Its definition of ERW, which covers almost all
conventional weapons, encompasses cluster munitions that did not explode on
impact or were abandoned.[17]
Russia submitted its consent to be bound by the protocol on July 21, 2008, and
it entered into force for the state six months later, that is in January 2009.
Georgia agreed to be bound on December 22, 2008. It will not enter into force
for Georgia until June 2009, so the instrument does not yet bind the state.
Nevertheless, Georgia may not “defeat the object and purpose of the
treaty” in the interim.[18]

Protocol V lays out obligations for clearing ERW that are
designed to reduce their humanitarian effects. Affected states parties must
clear ERW in their territory and take steps to protect civilians, such as by
instituting risk education programs.[19]
States parties that are responsible for using weapons that leave ERW have
specific obligations. Article 3 requires user states parties that are no longer
in control of an affected area to “provide where feasible, inter alia
technical, financial, material or human resources assistance” for
clearance of ERW.[20]
User states parties must also retain and make available any information, such
as ERW types, numbers, and locations, that will facilitate clearance and risk
education.[21]

While Protocol V is a relatively modest instrument[22]
and does not prohibit or even restrict the use of cluster munitions, it does
establish standards for reducing the harm of submunition duds to which Russia
and Georgia, as states parties, should adhere.

The Convention on Cluster Munitions

While existing international humanitarian law prohibits the
worst uses of cluster munitions, a new treaty, the Convention on Cluster
Munitions, comprehensively bans the weapon. Both a disarmament and humanitarian
treaty, it not only prohibits use, production, transfer, and stockpiling, but
also establishes strong remedial measures to enhance protections for civilians.
The Convention on Cluster Munitions has not yet entered into force, and neither
Russia nor Georgia participated in its negotiation. Nevertheless, the
convention reflects the strong opposition to cluster munitions within the
international community.

In 2006 the failure of states to approve a negotiating
mandate for a CCW cluster munition protocol, combined with Israel’s
shocking use of cluster munitions in Lebanon, spurred a movement to create a
treaty outside the CCW. The Oslo Process, named for the site of its first
meeting, began in February 2007. On May 30, 2008, all 107 participating states
at the final conference in Dublin adopted the text of the new Convention on
Cluster Munitions.[23]
The convention was opened for signature on December 3, 2008, and to date, 96
countries have signed and six have ratified. It will enter into force six
months after the thirtieth instrument of ratification or accession, acceptance,
or approval is deposited.[24]

Key Provisions of the Convention on Cluster Munitions

While all of its articles relate to cluster munitions, the
Convention on Cluster Munitions encompasses a set of core obligations, outlined
below, that are particularly relevant to the conflict between Georgia and
Russia. They include both preventive and remedial measures. The former are
designed to prevent the kind of use that occurred in Georgia. The latter seek
to alleviate the humanitarian effects of use that has already taken place.
Together they address the immediate as well as long-term effects of cluster
munitions. The treaty does not allow reservations, which strengthens the power
of its provisions.[25]

Under Article 1’s basic prohibitions on cluster
munitions, states parties undertake “never under any circumstances”
to use, produce, transfer, or stockpile cluster munitions, or to “assist,
encourage or induce anyone to engage” in any of these prohibited
activities.[26]
In Article 3, the Convention on Cluster Munitions requires states parties to
destroy their stockpiles of cluster munitions within eight years.[27]
In Article 2(2), the convention defines a cluster munition as “a
conventional munition that is designed to disperse or release explosive
submunitions each weighing less than 20 kilograms, and includes those explosive
submunitions.”[28]

States parties are also obligated to take remedial measures.
Article 4 requires states parties to clear cluster munition remnants in areas
under their “jurisdiction or control” within ten years and to
provide for risk education.[29]
It “strongly encourage[s]” states parties that used or abandoned
cluster munitions prior to the convention’s entry into force to assist
the affected state with clearance.[30]
Article 5 lays out states parties’ obligations to assist victims, defined
broadly to cover both individuals directly impacted by the weapons and their
affected families and communities.[31]

Finally, Article 6 on international cooperation and
assistance lays out obligations for states parties “in a position to do
so” to provide assistance to affected states.[32]

The Importance of Joining the Convention on Cluster
Munitions

States should sign and ratify the Convention on Cluster
Munitions as soon as possible. Their support for the treaty will help prevent
future use of cluster munitions like that which occurred in Georgia. By signing
the treaty, a state undertakes to accept the principle of a comprehensive
prohibition on cluster munitions because signatories cannot “defeat the
object and purpose of the treaty.”[33] The more
signatories there are, the more the weapon will be stigmatized. By ratifying
the treaty, a state undertakes to be legally bound by its specific provisions.
The sooner states ratify the instrument, the sooner it enters into force, and
the more ratifications it garners, the greater its legal influence will be.

While the Convention on Cluster Munitions is awaiting enough
ratifications to enter into force, it can still influence the behavior of
states, even those not yet party to it, such as Russia and Georgia. Its already
widely accepted standards have put states on notice that certain actions will
draw condemnation from the international community. Stigmatization has led most
states to follow the provisions of the Mine Ban Treaty, even if they are not
party. In recent years, Burma is the only country to make significant use of
antipersonnel mines.[34]
The Convention on Cluster Munitions has the potential to have a similar impact.

Russia and Georgia, in particular, should sign and ratify,
or at least follow the principles of, the Convention on Cluster Munitions as
soon as they can. Many in the international community condemned their use of
cluster munitions in Georgia.[35]
Publicly supporting the convention would demonstrate that they are in step with
widely accepted legal principles. Russia and Georgia could also mitigate the
harm they caused in the 2008 conflict by meeting the convention’s
obligations on clearance, risk education, and victim assistance. Finally,
Georgia would benefit from joining the Convention on Cluster Munitions because
it would be eligible to receive international assistance for addressing the
aftereffects of cluster munitions.

The Belligerents and the Cluster Munitions Used

The conflict in Georgia highlights the nature of the global
problem of cluster munitions. Both sides employed the weapon, causing civilian
casualties, yet their military profiles and histories with the weapon are quite
different. This case underlines the risks of continued production, transfer, and
stockpiling. Whoever the user, and whatever the type used, cluster munitions
pose unacceptable risks to civilians and must be eliminated.

Russia produces and exports its own cluster munitions and
has stockpiles of millions of submunitions of various types. It has used
cluster munitions previously, notably in Chechnya. Georgia does not manufacture
its own cluster munitions but is an importer that received the models it used
in this conflict from Israel. It has a smaller arsenal than its larger neighbor
and claims that it now possesses only one active type. Human Rights Watch is
not aware of any evidence that Georgia used the weapon prior to the August 2008
conflict.

Between the two of them, Russia and Georgia also employed
cluster munitions that exemplify the variety of the weapon, including both
air-dropped and ground-launched models delivered from bombs, rockets, and
missiles.

Use, Production, Transfer, and Stockpiling

The two parties to this conflict have participated in the
worldwide use, production, transfer, and stockpiling of cluster munitions. At
least 77 states stockpile cluster munitions, amounting to caches of at least
hundreds of millions of individual submunitions. Thirty-four countries have
produced more than 210 different types of cluster munitions, both air- dropped
and surface-launched, including projectiles, rockets, missiles, bombs, and
other dispensers. At least 13 countries have transferred more 50 different
types of cluster munitions to at least 60 other countries as well as non-state
armed groups.[36]
At least 15 states and a small number of non-state armed groups have used
cluster munitions in at least 32 countries and disputed territories.[37]

Russia

Russia has not made information regarding national
stockpiles or inventories readily available to the international community, but
it is known to be a major producer, exporter, and stockpiler of cluster
munitions. Several Russian companies are associated with the production of
cluster munitions: Bazalt State Research and Production Enterprise (air-dropped
bombs), Mechanical Engineering Research Institute (120mm, 152mm, and 203mm
artillery projectiles), and Splav State Research and Production Enterprise
Rocket (122mm, 220mm, and 300mm rockets and missiles).[38] Cluster
munitions of Russian/Soviet origin have been reported in the stockpiles of at
least 29 countries: Algeria, Angola, Azerbaijan, Belarus, Bulgaria, Croatia,
Cuba, Egypt, Georgia,[39]
Guinea-Bissau, Hungary, India, Iran, Iraq, Kazakhstan, Kuwait, Libya, Moldova,
Mongolia, North Korea, Peru, Poland, Romania, Slovakia, Sudan, Syria, Uganda,
Ukraine, and Yemen.[40]

Russia’s own stockpiles are estimated to be in the
hundreds of millions or more of submunitions. The following chart, which draws
on information from open sources, lists current Russian stockpiles for which
Human Rights Watch has evidence.

Georgia is not the first location where Russia has used
cluster munitions. It repeatedly used cluster munitions in Chechnya between
1994 and 1996 and again in 1999. The attacks led to at least 636 casualties,
including 301 deaths, according to Handicap International.[42]
The attack on the Grozny market on October 21, 1999, probably the most
high-profile one in Chechnya, caused more than 100 deaths according to HALO
Trust, a UK-based demining organization.[43] All but 24 of the
636 documented casualties came during strikes, not afterwards. Not all
post-conflict casualties, however, may have been reported.[44]
Russian forces made use of multiple types of cluster munitions: air-dropped
bombs, tactical missiles, and multiple rockets systems.[45]
HALO Trust confirmed that the Grozny attack was by an SS-21 missile, a
precursor of the Iskander.[46]
Russia directed many of its cluster attacks at civilian areas.[47]
The Soviet Union also used cluster munitions in Afghanistan during the conflict
that lasted between 1979 and 1989.[48]

Georgia

According to then-Georgian First Deputy Minister of Defense
Batu Kutelia, interviewed by Human Rights Watch in October 2008, M85s are the
only submunitions that Georgia currently stockpiles for active use.[49]
He said Georgia bought its M85s from an Israeli company. Although the ministry
would not release the name of the company, Israel Military Industries is the
only known Israeli manufacturer of the weapon. Israel Military Industries also
made the M85s used by Israel during its 2006 war with Lebanon. Those
submunitions had high failure rates and caused civilian casualties and
socioeconomic harm.[50]

In 2004 Jane’s Information Group reported that the
Georgian Air Force also had KMGU and RBK-500 cluster bombs, both of which can
carry a variety of submunitions.[51]
The Georgian Ministry of Defense told Human Rights Watch in February 2009 that
it still has RBK-500 cluster munitions and BKF blocks of submunitions that are
delivered by KMGUs, but that their shelf-lives have expired and they are slated
for destruction.[52]
Kutelia said its air force planes are not fitted for delivering these
air-dropped weapons.[53]
Human Rights Watch is not aware of any evidence that Georgia used cluster
munitions before the 2008 conflict. Georgia is also not known to have produced
or transferred cluster munitions.

Cluster Munitions Used in Georgia and their Submunitions

During the 2008 conflict in Georgia, Russia used two types of
submunitions, the AO-2.5 RTM (carried in RBK bombs) and 9N210 (carried in
Uragan rockets), and Georgia used one, the M85 (carried in Mk.-4 rockets).
According to a Dutch investigation discussed later, Russia also used the
surface-to-surface Iskander missile carrying unknown types of submunitions.[54]
Human Rights Watch researchers found physical evidence of each of these
weapons, including submunitions and the canisters they were carried in, in the
towns and villages they visited. All these types, like most cluster munitions,
endanger civilians because of their broad area effect and the fact that they
leave unexploded duds after the conflict.

AO-2.5 RTM Submunition

The air-dropped AO-2.5 RTM submunition used by Russia is an
antipersonnel and anti-materiel weapon. It is designed to attack both troops
and equipment with its blast and fragmentation. The silver submunition has
spherical ends and a spin, or separation, ring around the middle. The latter
consists of a circular metal band with five semicircular pieces attached. The
submuntion weighs 2.5 kilograms and measures 90 by 150mm. Upon impact, it
splits into two halves before detonating. It has a kill radius of 30 meters for
materiel and 20 meters for personnel. In Georgia, Russia delivered these
submunitions by RBK series bombs. The RBK-250 contains 60 bomblets, and the
RBK-500 series contains 108 bomblets.[55]

9N210 Submunition

The ground-launched 9N210 submunition used by Russia is also
an antipersonnel and anti-materiel weapon. It is designed to attack both troops
and most types of equipment with its blast and fragmentation. The silver
submunition consists of a soda can-sized cylinder with six flat fins at the
tail end and weighs 1.8 kilograms. A hard plastic-like core just inside the
cylinder contains 370 metal fragments, which spray out in every direction upon
detonation. The fragments are identical small cylinders, measuring six
millimeters in length and having a six millimeter diameter. The 9N210, which
has an explosive mass of 0.3 kilograms, has a self-destruct device that is
supposed to detonate the submunition within 110 seconds if it does not explode
on impact.[56]
As shown during this conflict, however, it often fails. In one area being
cleared in Ruisi, NPA reported a 35 percent dud rate.[57]
In Georgia, Russia delivered its 9N210s in 220mm surface-to-surface Uragan
(Russian for Hurricane) rockets, each of which carry 30 of these submunitions.[58]

Iskander Missile

According to a Dutch investigative report into an attack on
Gori, Russia also used at least one surface-to-surface Iskander (also called
SS-26) missile carrying submunitions. Little is know about this weapon, except
that it is in Russia’s arsenal and, according to the Dutch report,
carries 20 submunitions.[59]
Russia has denied using the Iskander in this conflict, but as will be explained
below, both Human Rights Watch and the Dutch investigative team found evidence
of the weapon.

M85 Submunition

The ground-launched M85 submunition used by Georgia is a
type of Dual-Purpose Improved Conventional Munition (DPICM) bought from Israel.
It is an antipersonnel and anti-armor weapon, designed to attack troops and
armored vehicles, including tanks, with blast, fragmentation, and a penetrator.
This black, cylindrical-shaped submunition with one open end is often said to
resemble a battery or light socket. It is topped with a red or white ribbon[60]
that unfurls upon discharge, releasing a firing pin that arms the submunition
and directing the open end with a shaped charge downwards.[61]
The shaped charge is a concave copper cone that turns into a molten slug and
pierces armor when it hits perpendicular to its target. The outside
fragmentation shell, which consists of a series of stacked rings, is designed
to shoot out metal shards and kill people. In Georgia, Mk.-4 160mm rockets
delivered 104 M85s each.[62]
The GRADLAR 160 multiple launch rocket system launched the Mk.-4s, which have
an outside range of 45 kilometers.[63]

M85s come in two models, with and without self-destruct
devices. Human Rights Watch found many unexploded M85s in Georgia, and they
were only of the non-self-destruct variety. Then-First Deputy Minister of
Defense Kutelia said Georgian military deminers also found primarily
non-self-destruct models, but he could not explain their presence. He claimed
Georgia bought M85s exclusively with self-destruct mechanisms from Israel.

The 2006 Lebanon war demonstrated that M85s have
unacceptably high dud rates regardless of the type. Many military experts had
argued the self-destruct version was one of the most reliable and sophisticated
submunitions in existence.[64]
In testing, the M85 has a 1.3 to 2.3 percent reported failure rate. Based on a
study of strike locations where the self-destruct models landed in Lebanon,
however, weapons experts and United Nations (UN) deminers estimated that the
self-destruct M85s had an actual failure rate of 10 percent or higher.[65]

Use of Cluster
Munitions by Russia

Russia used cluster munitions in or near nine towns and
villages in the Gori-Tskhinvali corridor south of the South Ossetian
administrative border. Russian cluster munition strikes on populated areas
killed 12 civilians and injured 46 more. Human Rights Watch did not document
any casualties from Russian duds after the time of attack, but it did find many
unexploded submunitions so the potential for future injuries remains.

During multiple missions to the Gori and Kareli districts
just south of the South Ossetian administrative border, Human Rights Watch
researchers found unexploded submunitions, pieces of detonated submunitions,
and carrier bombs and rockets. They also conducted interviews with victims and
witnesses of cluster munition strikes and deminers who work in the area.
Through these sources, researchers gathered evidence of Russian cluster
munitions in or near villages, towns, and one city mostly in a band to the
south of the area investigated: Akhaldaba, Dzlevijvari, Gori, Pkhvenisi, Ruisi,
Variani, and Varianis Meurneoba. In early 2009 NPA deminers found evidence of
Russian 9N210 submunitions from the August 2008 conflict in two additional
villages: Kvemo Khviti and Zemo Nikozi.[66]

In official statements, Russia has repeatedly denied using
cluster munitions.[67]
Nevertheless, Human Rights Watch has concluded that these incidents are
attributable to Russian actions. According to witnesses, the targets were
Georgian, not Russian, troops. Although Georgian troops were usually not in the
immediate vicinity of a strike, they were often in the general area, and
Russian troops were not. Russia is known to have produced and to stockpile the
types of cluster munitions used (AO-2.5 RTM and 9N210 submunitions, RBK series
bombs, Uragan rockets, and Iskander missiles, as described above). Georgia
reports that it possesses RBK-500 bombs, but that their shelf-lives have expired
and they are slated for destruction.[68]
Human Rights Watch knows of no evidence that Georgia ever possessed the Uragan
rocket with 9N210s or the Iskander missile.[69] International
deminers, who are cluster munition experts and are doing clearance in the region,
believe these submunitions to be Russian.[70]

In its strikes on or near populated areas, Russia violated
the international humanitarian law prohibition against indiscriminate attacks.[71]

Civilian Casualties at the Time of Attack

Russian cluster munitions landed in or near a city, town, or
village in nine strikes, and in three—on Gori, Ruisi, and
Variani—they caused dozens of civilian casualties. Many witnesses said
Georgian troops or vehicles, the most likely cluster munition targets, were not
in the immediate area at the time of the strikes, and in no case did Human
Rights Watch find evidence of enemy units at the site of the attack.

Gori City

According to an investigation initiated by the Dutch
Ministry of Foreign Affairs, Russia attacked the city of Gori with cluster
munitions on August 12. The conclusions of the investigation support the
findings of Human Rights Watch’s research. Gori’s GorMed Hospital,
the civilian hospital in Gori, reported that the attack killed six civilians,
including a Dutch cameraman, and injured 24.[72]

The Dutch government investigation was an effort to clarify
the circumstances that led to the death of RTL cameraman Stan Storimans on that
day. The team analyzed the site, photographs and videos, physical evidence, and
testimony from witnesses, government officials, and nongovernmental
organization (NGO) researchers. It concluded that a Russian Iskander missile
carrying submunitions landed on the main square in Gori at around 10:45 a.m.,
killing Storimans and killing and injuring others in the area.[73]

The Dutch government report determined that Georgian troops
had fled Gori by August 12. Storimans, his colleague Jeroen Akkermans, and
Israeli journalist Zadok Yehzekli arrived at Gori’s central square around
10:30 a.m. that day. Storimans had recorded footage of the scene, including the
statue of Stalin, and was heading back to his taxi when the explosion occurred.
It killed Storimans, seriously injured Yehzekli, and killed or injured many
other bystanders.[74]
While the blast did not cause any structural damage, it shattered windows and
left fragmentation marks in neighboring buildings and the taxi.[75]

The Storimans investigation did not find any submunitions
but identified from photographs in the vicinity an Iskander missile, a Russian
weapon that the Dutch report said carries 20 submunitions. It determined that
“the entire square and several nearby streets [an area of about 300 by
500 meters] had been hit in the same manner” with metal fragments
measuring about five millimeters.[76]
The report says, “It was deduced from the entry holes that the bullets
[that is fragments] were from multiple explosions, both on the ground and in
the air.”[77]
Video footage from journalists and security cameras also showed such
explosions.[78]
This evidence was consistent with the workings of and damage caused by cluster
munitions.

One of heads of the Dutch investigation, Adriaan Jacobovits,
told Human Rights Watch that the submunitions had identical fragments and that
he believed they were only antipersonnel weapons. Investigators ruled out the
alternative possibility of an airburst of a unitary weapon because video from
three cameras showed one incident with 20 explosions. Each explosion left a
distinct pattern with fragmentation marks radiating from the center, like the
pattern left by a submunition. The explosions also created craters in the main
square, on neighboring streets, and even in homes, Jacobovits said.[79]

Human Rights Watch’s research focused on this incident
from the perspective of Georgian civilians and independently reached the same
conclusion as the Storimans investigation. Human Rights Watch researchers took
victim and witness testimony and examined both video footage and physical
damage to the area. They also found different parts of an Iskander missile at
two sites within a few blocks of the strike.

On the morning of August 12 a group of civilians had
gathered to receive food from local officials at the Gori Municipality
Administration building located on the city square. A nearby car accident caused
further commotion and crowding, and some journalists stopped on the square to
inquire about directions. Two victims estimated that there were at least 40
civilians on the square when the attack took place.[80]

Victims of the attack said that before falling to the
ground, they saw numerous small explosions within seconds. Keti Javakhishvili,
24, was walking to a neighbor’s house for bread when the attack came.[81]
Dr. Merab Kiladze, head of the surgery department of the Gudushauri National
Medical Center in Tbilisi, told Human Rights Watch that Javakhishvili suffered
massive injuries to her liver, stomach, and intestines as well as hemorrhagic
shock. Kiladze said it would require multiple procedures to repair all of the
damage and months to convalesce.[82]

Another victim, Nodar Mchedlishvili, 54, told Human Rights
Watch that he went to the municipality building to get rice to feed eight
people displaced from South Ossetian villages. He said, “In a couple of
seconds, from everywhere I heard what sounded like massive gunfire. We fell on
the ground, and some people never got up.”

Mchedlishvili sustained shrapnel wounds to his left leg and
knee. He was driven to GorMed Hospital in a car with six other victims as part
of a convoy of the injured before being transferred to Tbilisi. Giorgi
Malkhaziani, 59, whose right leg was shredded as a result of the attack,
corroborated Mchedlishvili’s account of the events.[83]

The main command center for the Georgian
military operation in South Ossetia was located in Gori. Witnesses,
however, reported no military forces on the square when it was attacked.[84]
The Dutch report corroborated this testimony and stated that the Georgian
military had fled Gori by August 12.[85]

Ruisi

On August 12 Russian forces attacked the village of Ruisi at
its northwest and southeast ends. They used Uragan rockets that scattered 9N210
submunitions across the area. The submunitions killed three civilians and
wounded six others at the time of the attack.

Suliko Goginashvili, 65, died in the northwest part of town
that day. He had taken the family’s cows to graze in their fields in the
morning. An assault began around 11 a.m. and lasted until about 2 p.m.
“When we found him he had numerous wounds. His head was broken….
His legs and hand were sliced off,” his 57-year-old wife, Iza, said.[86]
Cluster munitions also killed Natela Guraspashvili, a 75-year-old woman who
accompanied Goginashvili to the fields. While Goginashvili’s family
waited three days to bury him, Guraspashvili’s body was so damaged that
it “could not be put back together,” and she was buried
immediately.[87]
Khvicha Sa’atashvili, a 45-year-old carpenter, showed Human Rights Watch
researchers pieces of an Uragan rocket that he found near where Suliko
Goginashvili died. He also showed them fragments of 9N210s he found in his
house and yard in the middle of town.[88]

On the same day, around noon, Ushangi Beruashvili, 68,
hurried along the highway near the edge of his village, heading to Kareli to
escape the violence. When the fighting began, he turned back to find shelter in
a basement not far from Goginashvili’s field. As he was entering the
basement, “Something hit me in the stomach area. My intestines fell out.
I held them in.”[89]

As his wife, uninjured, left to seek help, the village
administrator passed by with his own family and drove Beruashvili to Khashuri
Hospital, west of Kareli. Beruashvili stayed in the hospital for two weeks with
several other victims from his village, including Mzia Khanisvhili. His small
intestine had been “cut into pieces”; doctors have sewed it back
together, but he said in October 2008 that he would have to wait for three
months, while the intestine healed, for an operation to reinsert it in his
abdomen.[90]
At the time of Human Rights Watch’s visit, his wife was in Tbilisi to
negotiate with the minister of health for the medical assistance Beruashvili
needs.

The population of Ruisi suffered casualties at the other end
of town during the same attack. Amiran Vardzelashvili, 76, was walking on the
path to his garden next to his home when a cluster munition landed. A
submunition fragment pierced his heart, killing him almost immediately.[91]

Marine, one of his six daughters, was at home when the
strike occurred, and she described the scene:

We heard bombs exploding in different places. People were
screaming and crying. We could feel the blast waves from the explosions. It was
right near our house…. Suddenly, we heard our father screaming,
“Gela!” He was calling for his son. We ran out and saw him. My
father was on the ground, all covered in blood. He died on the spot from
shrapnel wounds. We buried him here, in the yard.[92]

According to Vardzelashvili’s 35-year-old son, Gela,
the attack left one big crater and 15 small ones in the garden.[93]
He and a neighbor showed Human Rights Watch pieces of an Uragan rocket that
landed at the scene.

About 700 meters away, a group of women watched other parts
of the village being destroyed. Fearing for their lives if they stayed in their
homes, they fled to the local church, clearly marked by a large cross.
Seventeen-year-old Tinatin Beruashvilisaid, “We felt the Russians
would know it was a church and not bomb it.”[94]
She and her mother, Maya, 40, and two neighbors, Tsiuri Khanishvili, 56, and
Tsiala Beruashvili, 50, huddled near the church on a large pipe under a tree,
and cluster munitions fell around them. Rather than finding safety, they all
suffered extensive injuries, and houses near the church burned.[95]
The church itself was not damaged, but gravestones in the attached cemetery had
fragmentation marks from exploding submunitions.

Tsiala described hearing an explosion as something hit the
church cemetery. When she realized she could not run away, she lay down:

I felt a big piece of shrapnel cutting my left leg. There
was a big open wound. I lost consciousness. When I came to my senses, I heard
Tinatin screaming that I needed help because I couldn’t walk. They helped
me out.

Tsiala stayed in the hospital for two weeks and had to
return regularly for another two weeks to receive treatment as an ambulatory
patient.[96]

Maya did not lie down. She said she thought she had lost an
eye and felt her hand get “heavy.” She suffered shrapnel wounds
near her eye and to her face, right hand, hip, and back. Seeing that Tsiala
could not stand, Maya helped her up, and the two walked to get help. A neighbor
took them in a minivan to the hospital.[97] Maya showed Human
Rights Watch a piece of shrapnel that doctors had removed, and it matched the
fragmentation of a 9N210.

Maya’s daughter Tinatin said she was hit in the lower
right leg. She suffered a broken bone, and the hospital put her leg in a cast.[98]

Tsiuri said she screamed when she heard the explosion.
“I had shrapnel in my back. When I stood up to run away, several hit me
in the buttock. I still have shrapnel in my body,” she said. The
overwhelmed hospital could not give her deep wounds due attention and therefore
did not remove the shrapnel.[99]

The women showed Human Rights Watch researchers an Uragan
rocket that had fallen in the cemetery, and a neighbor boy showed them a
handful of 9N210 fragments from the same place. Damage from such fragments was
visible on the gravestones of the cemetery. According to Tamara Khodanovich,
59, her husband, Arjevan Beruashvili, 72, passed the women hiding by the church
on his way to his garden. Another rocket fell near him, but he was not injured.
Khodanovich showed Human Rights Watch researchers the rocket, which was also an
Uragan.[100]

While in Ruisi, Human Rights Watch researchers also visited
a contaminated garden next to some homes. NPA deminers were clearing the site
and showed researchers seven unexploded 9N210s as well as many pieces of
submunitions and rockets from the attack. The submunitions had shattered the
windows and left shrapnel marks on the walls of a neighboring home. Amir
Musanovic, who was leading the clearance team, estimated the 9N210s in his
200,000 square meter area of operation had a 35 percent dud rate.[101]

Some witnesses who spoke to Human Rights Watch said that
Georgian troops had moved through the town the previous day but that on the day
of the attack, all Georgian troops had left the town and were deployed a few
kilometers outside of it.[102]
A local shopkeeper described how Georgian troops were fleeing the area with
their equipment by two roads on August 11, the day before the attack.[103]
Another resident, however, said that Georgian troops were in the town at the
time of the attack.[104]
Regardless of whether Georgian troops were present, use of cluster munitions in
a populated area like Ruisi would violate existing international humanitarian
law.

Variani

Russian forces attacked the town of Variani with AO-2.5 RTMs
on August 8 and again on August 12. Human Rights Watch found evidence of
submunitions spread throughout two neighborhoods as well as in the fields on the
edge of town. Incidents in the two neighborhoods killed a total of three
civilians and wounded 16 more.

Strike at the Birzha

On August 8, more than a dozen men had congregated at a birzha,
or gathering place, in the center of town. “It was in the morning, when
people send their cows to pasture.... We were talking and chatting.... The bomb
fell from the air, and it exploded. It happened in seconds, and we all fell
down. When I looked around, I saw people spread all around,” said
70-year-old Teimuraz Khizanishvili. A few meters away, he saw Malkhaz
Bedoshvili, about 31, lying face down, dead. Malkhaz’s father, Omar,
about 65, “sat down and covered his wounds. He was taken to Gori [GorMed]
Hospital and died several hours later.” Khizanishvili said there were no
Georgian troops in the neighborhood.

Khizanishvili himself, wheelchair-bound with two large casts
in October 2008, suffered serious injuries. Both his legs were broken, and he
had shrapnel “everywhere” in his body, including his forehead,
hand, legs, torso, and back. His 43-year-old son, Nikoloz, sustained numerous
shrapnel injuries, including a gaping wound in his right thigh. After four
operations, he still had to use crutches and would have to have further
surgery. Khizanishvili’s 70-year-old wife, Tamara Kokashvili, was at
their nearby home, and the explosion burst her eardrum so that she has lost
almost all her hearing.[105]

Izo Khizanishvili, 67, who lived immediately adjacent to the
birzha, was in her garden when the submunitions landed. She said,

I heard a loud explosion in the area. There were multiple
ones. I dropped my tool and ran away. When I got to the fence, shrapnel hit me.
I was hit in the back and was bleeding. My son was not home, so I was worried.
I went out and saw 14 to 15 people around. There were two dead, and the rest
were wounded.

Lia Kereselidze, 48, was at her nearby home when she heard
the explosion followed by screams and shouts. “My husband [56-year-old
Niko] was wounded and screaming for help. He was still conscious,” she
said. Niko had 14 pieces of shrapnel in his left side and three more in his
back. He was in Gori for treatment at the time of Human Rights Watch’s
visit.[107]

The Giorgishvili family was planning to leave the village
before the attack came. That morning, 13-year-old Beka went to say goodbye to
his friends, 12-year-old Vakho and 8-year-old Tsira Urjumelashvili, who lived
about 90 meters away from the birzha. The three friends were pumping up
the tires of Vakho’s new bike when an explosion went off about five
meters away. Fragments broke Beka’s skull, and doctors could not remove
the shrapnel; he suffered brain damage and can no longer speak clearly.[108]
Vakho had shrapnel in the back of his shoulder and armpit, and his sister Tsira
was also wounded.[109]

Human Rights Watch collected testimony that in addition to
killing two men, the strike at the birzha injured 14 people.[110]
Their names and ages are:

1)Kakha Adamashvili, about 43

2)Ilia Adamashvili, about 31

3)Temo Adamashvili, about 27

4)Dato Akopov, about 31

5)Beka Giorgishvili, 13

6)Niko Kereselidze, 56

7)Izo Khizanishvili, 67

8)Mikkeil Khizanishvili, about 46

9)Teimuraz Khizanishvili, 70

10)Nikoloz
Khizanishvili, 43 (Teimuraz’s son)

11)Tamara
Kokashvili, 70 (Teimuraz’s wife)

12)Vano
Khizanishvili, about 65

13)Tsira
Urjumelashvili, 8

14)Vakho
Urjumelashvili, 12.

At Lia Kereselidze’s home, about 130 meters from the birzha,
Human Rights Watch saw a cluster munition canister labeled
“RBK-500/AO-2.5 RTM” in Cyrillic and the crater in which it had
landed. Kereselidze said two others had been found in the area but had been
removed.[111]

Strike on Another
Neighborhood

Cluster munitions caused additional civilian casualties in a
neighborhood on the other side of Variani. On August 12, Suliko Zubashvili, 59,
stood on a street corner talking to two neighbors, Zakro Buzaladze and
78-year-old Gaioz Kebadze, when he heard a jet overhead, followed by an
explosion. The strike wounded both Zubashvili and Buzaladze and killed Kebadze.
“I was wounded in the leg, chest, back, [and] fingers,” Zubashvili
said. “I don’t remember how many explosions there were. I fell down
and got up. I was bleeding, and when I looked back, Gaioz was dead. Nobody was
here to help so I went home and tried to stop the bleeding.” When he
could not stop the bleeding himself, he went to his brother’s wife who
called a nurse to help bandage the wounds. The next day, he walked 12
kilometers to the GorMed Hospital in Gori because there was no ambulance. He
was ultimately transferred to Tbilisi and spent about 10 days in the hospital
there. Buzaladze suffered minor wounds to his back and treated himself.[112]

While those were the only casualties in that part of town,
AO-2.5 RTMs covered the neighborhood. Galaktion Zubashvili, 79, said he was sitting
on a bench outside his front door when jets flew overhead. “Something
told me I should get up and go inside. Then something exploded.... [T]hen I saw
shrapnel, and smoke rising up,” he said. He sought shelter in his home.
After the fighting stopped, Zubashvili found three unexploded submunitions,
craters from three submunitions that exploded in his yard, and one crater in
his neighbor’s yard.[113]

Anzor Zubashvili, 68, said at least two submunitions
exploded on impact in his yard. When he came out of his basement after the
attack, he said, “Windows had come down. Doors had come off. The leaves
and trees had fallen. It looked as if there had been many years of no one in
the area.” He later found six unexploded AO-2.5 RTMs in his house and yard.
For example, when he went to repair his roof a month after the strike, he found
two submunitions and carried them downstairs until deminers could remove them.
He found another one on October 16, two days before Human Rights Watch arrived.[114]

During its visit, Human Rights Watch found three unexploded
AO-2.5 RTMs and the separation rings of two more. It heard reports of an
additional 50 individual submunitions that had exploded on impact or been
destroyed by deminers in Variani and the fields just outside it.[115]

While some villagers said Georgian troops might have been in
the fields surrounding Variani, they said there were none in the town at the
time of the attacks.[116]

Other Strikes

Human Rights Watch itself found evidence of Russian cluster
munitions in or near four other towns. In Akhaldaba, Russian forces dropped
AO-2.5 RTMs along the Liakhvi River on the edge of town. Amiran Natsvlishvili,
a trout farm guard, described the submunitions and showed Human Rights Watch
researchers HALO Trust warning signs and sandbags. He also said that deminers
had cautioned him not to touch the submunitions.[117]

On August 11 Ilia Chagalishvili, a 54-year-old farmer, was
resting on a log in his field outside Dzlevijvari. Suddenly, at around 11 a.m.,
a rocket crashed into the next field. “When it fell and exploded, I
started running [home]. I saw there was another one in my house. I saw the
windows were broken,” he said.[118] The rocket that
was embedded in his backyard had suffered a catastrophic failure, meaning that
it had not properly dispensed its submunitions and most of them had not
exploded. He was too afraid to sleep in his home for two weeks, but the rocket
was not cleared until the week of October 12.[119]
He added, “There was no Georgian military here on the 11th [of
August]. The entire village was empty. There were only five people remaining.
There was nobody around. I have no idea why the Russians would attack.”[120]
Human Rights Watch found many pieces of 9N210 submunitions at the craters both
at his home and in his field.

In Pkhvenisi, Gocha Asanidze, a 44-year-old farmer, showed
Human Rights Watch researchers an Uragan rocket embedded in a tomato field
outside of town and many pieces of 9N210 submunitions. He had found the rocket
and debris when he returned to town after the war in late August. Deminers had
cleared the site in mid-October.[121]
As will be discussed in the next chapter, Georgian cluster munitions also
struck Pkhvenisi.

Residents of Varianis Meurneoba showed Human Rights Watch
researchers nine pieces of RBK-250 pusher plates, which help deploy the AO-2.5
RTMs carried by the bombs. Each bomb has three such plates that form a circle.
The residents reported that the Russians had done extensive clearance in the
area before they withdrew in October.

In March 2009 NPA reported to Human Rights Watch that 9N210s
had landed on two additional villages during the conflict. It identified the
submunitions in an orchard outside of Kvemo Khviti. It also found the remains
of an Uragan rocket and its submunitions “throughout the village area”
of Zemo Nikozi, including 100 meters behind a school.[122] As
will be mentioned in the next chapter, Georgian M85 submunitions also landed on
both these villages.

Socioeconomic Harm

Since the area’s economy relies heavily upon
agriculture, Russian duds have endangered those who attempt to harvest their
crops and impeded Georgians’ ability to tend their farms and livestock
and earn a living. While some of the Russian strikes on fields may have been
aimed at Georgian military targets, the Russian forces’ decision to use
cluster munitions, which have high dud rates, has caused socioeconomic harm
after the conflict. This harm was most visible in Variani, where
submuntion duds blocked many farmers from their fields. Nukri Stepanishvili, a
44-year-old farmer, left the town on August 11, just as the Georgian military
was fleeing, and returned a couple weeks later to find two submunition duds had
penetrated his home. On October 18, he found another unexploded AO-2.5 RTM in
his cabbage patch. He reported it to the police and showed it to Human Rights
Watch researchers. “I haven’t harvested. I won’t until there
is some clearance,” he said. He feared losing his cabbages, which would
be ready to harvest in early November. He had also lost his tomatoes because
they went unwatered during his forced absence in August.[123]

Tamar Eremov, a 68-year-old farmer, echoed
Stepanishvili’s fears. Looking for walnuts on her land near the edge of
town, she found an unexploded AO-2.5 RTM. “[Contamination] has interfered
with my harvest.… Now I’m afraid to go in[to my fields] because of
the ordnance.”[124]
She said she worried that the submunitions would prevent her from harvesting
her tomatoes, beans, and corn.

Anzor Zubashvili, who had had eight submunitions land in his
home and yard, said the attack had resulted in the loss of about 15,000
flowers, which he had grown to sell. Submunitions also killed his cow and one
of his chickens.[125]

Tengo Kebadze, 42, another farmer from Variani, reported
that the Georgian military deminers removed 27 submunitions from his cherry
orchard. He still had a live AO-2.5 RTM in another field he owns that he had
not reported.[126]

Russian Statements about Cluster Munitions

Russia has denied using cluster munitions since the first
reports about cluster use were published by Human Rights Watch. In a daily news
briefing on August 15, Col. Gen. Anatoly Nogovitsyn, deputy head of the General
Staff, said, “We did not use cluster bombs, and what’s more there
was absolutely no necessity to do so.”[127] The Ministry of
Defense said it did not use cluster munitions “in the area of the
Georgian-Ossetian conflict,” but the ministry did not explain what is
included in the Georgian-South Ossetian conflict zone and whether it includes
areas of Georgian territory beyond South Ossetia.[128] At
the September meeting of the CCW Group of Governmental Experts, Andrei Malov,
senior counselor in the Russian Ministry of Foreign Affairs, echoed this
denial. In a January 30, 2009 letter to Human Rights Watch, a Russian Foreign
Ministry official wrote, “Despite Georgian aggression in South Ossetia,
the Russian Federation did not employ the use of cassette [cluster] bombs or
antipersonnel landmines.”[129]

On August 16, 2008, the Russian Ministry of Defense denied
that it had used the Iskander missile in South Ossetia.[130]
The Dutch Foreign Ministry investigation later said Russian forces had used
this weapon in Gori. Human Rights Watch researchers saw the remnants of an
Iskander missile in Gori in mid-August.

According to a member of the Dutch investigative team,
Russian authorities provided no information for the report on the Gori
incident, saying they had none to give.[131] Nevertheless, on
October 23, the Russian Ministry of Foreign Affairs disputed the findings of
the Dutch investigation, claiming that it had not been presented with
sufficient evidence to warrant the conclusion that a Russian cluster munition
had killed Storimans. In a public statement, the ministry said, “No
unambiguous conclusion about the identity of the ammunition whose fragments to all
appearances had killed [Storimans] can be drawn on the basis of the data
provided by the Dutch. The documents and death scene photographs submitted by
the Dutch side are not sufficient evidence that Stan Storimans was killed as a
result of the use of weapons by the Russian side.”[132]
The statement continued:

It is only regrettable that the arguments set forth at the
Russian MFA during the October 17 meeting by the Russian side were not heard
and did not find proper reflection in this document. We believe that the
establishment of the true circumstances will require more careful work by
military expects [sic]. Incidentally, the Georgian side has cluster warheads in
service.[133]

Notably, while rejecting the findings of the Dutch report,
Russia did not specifically repeat its denial of cluster munition use elsewhere
in this statement.

About a week later, the Russian Foreign Ministry announced
it would conduct its own investigation of the Gori incident. “We are cooperating closely with the Dutch government commission and have received its leadership in Moscow. All documents are currently being studied, and it has been decided that the results of our investigation will be offered to the Netherlands,” said Foreign Minister Sergei Lavrov.[134]

Legal Analysis

Strikes on Gori’s main square and in the towns of
Ruisi and Variani caused civilian casualties, and the strike on Dzlevijvari hit
a farmer’s home in town. Human Rights Watch believes that cluster
munition attacks in or near populated areas are indiscriminate and thus
unlawful. Cluster munitions cannot distinguish between soldiers and civilians
so when they are used in places where the two groups may commingle, they are
inherently indiscriminate.

The attacks were also likely disproportionate. The Georgian
military was retreating at the time, and many witnesses told Human Rights Watch
that Georgian forces were not in the immediate vicinity of those attacks. As a
result, the military advantage of the strikes is questionable. Their civilian
harm, however, is clear. Russian cluster munitions killed or injured almost 60
civilians. Given the proximity of centers of civilian population to the strike
areas, this harm was foreseeable, and Russia should have anticipated it. Human
Rights Watch believes there should be a presumption that attacks on populated
areas are disproportionate, and the evidence in these cases supports that
position.

Russia should not only abide by these international
humanitarian law provisions in the future but also live up to its obligations
under CCW Protocol V, which it consented to be bound by on July 21, 2008. Under
this instrument, which encompasses cluster munitions, Russia’s duties
include “provid[ing] where feasible” assistance for clearance of
ERW, such as submunitions.[135]
As will be discussed below, Russian troops did significant surface clearance
before they withdrew to the South Ossetian administrative border on October 10.
Now the Russian military should provide assistance to other deminers, including
by sharing information on strike locations, weapon types, and numbers of
submunitions used, to facilitate and expedite clearance efforts.

The types of cluster munitions used by Russia fall under the
scope of the new Convention on Cluster Munitions, and for those states party to
the convention, their future use would violate its basic prohibition on all use
of cluster munitions.

Russia, like all states, should sign and ratify the
Convention on Cluster Munitions as soon as possible. If it cannot do so at this
point, however, Russia should take immediate interim measures to minimize the
humanitarian harm of cluster munitions. It should cease use in populated areas,
a measure necessary anyhow to comply with its obligations under international
humanitarian law. It should also prohibit future production and transfer, begin
destruction of its enormous stockpiles, and assist with remedial measures, such
as clearance, to ensure civilians do not die from the duds it left behind in
Georgia.

Use of Cluster Munitions by Georgia

Georgia also used cluster munitions during the August 2008
conflict. It fired M85 submunitions in Mk.-4 160mm rockets, weapons that it
bought as packages from Israel. Responding to a Human Rights Watch inquiry
related to cluster munitions, the Ministry of Defense said Georgia launched 24
volleys of 13 GRADLAR (Mk.-4) rockets each.[136] While these
rockets can have unitary warheads as well, if they all were cluster munitions,
they would have carried 32,448 M85 submunitions. In the strikes that Human
Rights Watch confirmed, these cluster munitions caused fewer identified
casualties than their Russian counterparts—at least four civilian deaths
and eight injuries—but like all cluster munitions, they killed and
injured civilians both during attacks and afterwards, and their duds continue
to cause socioeconomic harm.

The Georgian Ministry of Defense has acknowledged using
cluster munitions, saying its armed forces aimed at Russian targets between the
Roki Tunnel and Tskhinvali in attacks from August 8 to 11.[137]
Because it did not conduct a fact-finding mission to the region to investigate
cluster munition use in particular, Human Rights Watch has not independently
verified Georgia’s description of this use of cluster munitions against
targets in South Ossetia. In an interview with Human Rights Watch, a member of
the Ossetian militia, who had been assisting in the evacuation of civilians
along the Dzara road south of the Roki Tunnel, said he saw “a rocket
which exploded in the air, and then small clusters started exploding.”[138]
Human Rights Watch did not corroborate this report or establish whether the use
of these munitions caused civilian casualties in this area.

Russia reported on Georgian use of cluster munitions in
South Ossetia only in February 2009. The Russian authorities’ January 30,
2009 letter to Human Rights Watch did not respond to a request for information
about this Georgian use during the conflict. A February 27, 2009 letter
from the Investigative Committee of the Prosecutor General’s Office, however,
reported that Georgian armed forces “used heavy offense
armaments—heavy artillery, Grad multiple-launch firing systems,
500-kilogram aerial bombs and cluster munitions—in shelling the civilian
population and objects in South Ossetia.”[139]

During several missions just south of the South Ossetian
administrative border in the Gori District, Human Rights Watch researchers
found unexploded M85 submunitions, ribbons from detonated submunitions, and
Mk.-4 160mm rockets, all pieces of Georgian weapons.[140]
They conducted interviews with villagers who had fallen victim to M85
submunitions, deminers who work in the area, and high-level government
officials. Through these sources, researchers gathered evidence of M85s in or
near a band of nine villages in the north of the Gori District: Brotsleti,
Ditsi, Kvemo Khviti, Meghvrekisi, Pkhvenisi, Shindisi, Tirdznisi, Zemo Khviti,
and Zemo Nikozi. A villager also showed them a Mk.-4 160mm rocket and red M85
ribbon in Variani, but because the town is further south and does not fit the
geographic pattern, Human Rights Watch has not determined for certain if it
landed in that location.

Several factors, which are discussed later in this chapter,
suggest that the submunitions landed on these villages because of a massive
failure. If the Georgian cluster munitions that Human Rights Watch documented
landed where intended, their use would have violated international humanitarian
law’s prohibition on indiscriminate attacks because many struck populated
areas.[141]
If the weapons failed dramatically, the attacks highlight the fact that cluster
munitions are highly dangerous to use. The large number of duds makes the
consequences of failure enormous. Human Rights Watch is unable to assess
whether Georgia’s use of cluster munitions between Tskhinvali and the
Roki Tunnel violated international humanitarian law because, as mentioned
earlier, researchers did not do an in-depth investigation in the area.

Civilian Casualties at the Time of Attack

Georgian cluster munitions killed at least one civilian and
wounded at least two more when they landed on or near the towns of Tirdznisi
and Shindisi. Witnesses interviewed by Human Rights Watch reported that
Georgian, but not Russian, troops and tanks were in the area at the time of the
incidents.

Shindisi

M85s caused two casualties during a strike on the edge of
Shindisi on August 9 at around 3:30 p.m. Vano Gogidze, 45, was killed, and his
sister Ketino Gogidze, 38, was wounded.[142] Human Rights
Watch found M85s near the site of their death.

A witness, Zura Tatrishvili, told Human Rights Watch that
Georgian troops had taken position in the fields adjacent to Shindisi during
their multiple attacks into and retreats out of Tskhinvali. The area is a
farming village, and though the village was not occupied, Tatrishvili stated, a
large Georgian Army force spent the night in the fields from August 9 to 10.[143]
According to two witnesses, Georgian troops and tanks were passing through the
area, although not the location of the casualties, when the submunitions fell.[144]

Tirdznisi

In Tirdznisi, M85s injured Alexandre Zerekidze, a driver and
farmer, during an attack on August 9 at around 3:30 a.m. He opened his front
door to investigate the noise he heard. Zerekidze told Human Rights Watch:

There was big shooting, and I came out to see what was
happening. I heard screams and came out to see if someone was wounded. As soon
as I came out, something exploded. I turned back, and shrapnel hit my back,
stomach, and leg. I started bleeding. My kids were inside of the house. I tried
to cover them. My wife treated me first and stopped the bleeding.[145]

The next morning Zerekidze went to a hospital in Tkviavi and
then on to Tbilisi. He was released a couple days later. Zerekidze reported
that there were no troops in the village the day of the attack.

Zerekidze showed Human Rights Watch an M85 fragmentation
ring from the incident and three small craters consistent with an M85 explosion
in his front yard and neighboring garden.

Other witnesses reported that Georgian submunitions fell in
the middle of Tirdznisi. Pridon Solomonian, 26, showed Human Rights Watch the
red ribbon of an M85 that had landed right in front of a store. He recalled:

People were leaving en masse. It was around August 9, 2008,
in the first half of the day. I was in my house [next door]. I saw [the submunitions]
falling down. One exploded, and when I got here I found two red ribbons. There
were many [M85s] in the village. There are some craters around.[146]

Civilian Casualties from Submunition Duds

Human Rights Watch documented that, after the Georgian
cluster munition attacks, M85 duds killed at least three civilians and wounded
six when they were disturbed in Brotsleti, Pkhvenisi, and Shindisi.[147]
Notwithstanding the absence of casualties in Ditsi, two incidents documented
there by Human Rights Watch show the ongoing and widespread danger of duds in
the area.

Brotsleti

Tariel Kikilashvili, a 38-year-old farmer, and Alika
Kikilashvili, a 48-year-old farmer, were hiding in the fields outside Brotsleti
during an attack on August 11. Tariel said, “When cluster bombs were
dropped, they exploded first in the air, and then there were many more. I saw
small craters every two meters in the fields.”[148]
Alika recalled that on their way back home they saw “many of the small
bombs.”

Three days later, Alika Kikilashvili was confronted with one
of those duds. Between 1 and 2 p.m., he was headed to the fields to tend his
cows. On his way, he met Tero Surameli, 46. Surameli was holding in his hands
two small objects that to Kikilashvili looked like light sockets. One had a
white ribbon, and one had a red ribbon. Someone had brought them from the
fields and given them to Surameli. Kikilashvili told his friend to put them
down.

Then, he said:

I had my phone in my hand and it vibrated. I was five steps
away [from Tero], and as soon as I answered it there was a big explosion. I
felt a kind of wave of wind hit me. I couldn’t understand what has
happening…. I started running away and didn’t feel wounded. I ran
700 to 800 meters. A dog started barking. I hid somewhere near my house because
I [thought the Ossetians might be coming]. When I didn’t see
anyone, I realized maybe something else had happened. Maybe that what Tero was
holding had exploded.

After recovering from the shock, Kikilashvili realized he
had shrapnel in his stomach, both arms, and both legs. Much of that shrapnel
remained in his body in October 2008. He said:

For four days I got no help. In particular my left leg had
a hole. I poured vodka inside so there would be no infection. Four days later
the Russians came. They had a field hospital here. Someone told them I needed
help, and they took me to the field hospital. I was taken back and forth and
treated.

Kikilashvili, who was facing Surameli at the time of the
explosion, said it was a “miracle” he survived. According to
Kikilashvili:

Tero’s face was completely damaged. There were a lot
of open wounds. He was alive for about an hour and then died. There was no
treatment or medicine. Someone covered his wounds. He was buried in his yard
and later moved to a cemetery.

Kikilashvili told Human Rights Watch that a third man,
Amiran Khaduri, was walking behind the pair and was also injured, although less
severely. He came to Surameli’s aid when he heard the noise.[149]

Human Rights Watch also found two unexploded M85s in the
fields of Brotsleti in October 2008. One had a red ribbon and one a white.[150]

Pkhvenisi

On August 18, Veliko Bedianashvili, 72, found an unexploded
M85 submunition with a red ribbon in a field close to his house in Pkhvenisi.
It exploded and killed him. His son, Durmishkhan Bedianashvili, told Human
Rights Watch, “There are so many of those lying around. The fields are
full of them.”[151]
Human Rights Watch researchers also found a Mk.-4 160mm rocket in Pkhvenisi.

Shindisi

On August 10 at around 11 a.m., several men from the village
of Shindisi decided to inspect one of the sites that had been hit the previous
day. At the site they found an M85 submunition with a red ribbon, which they
brought back to the village. When Ramaz Arabashvili, around 40, tried to
disassemble it, the submunition exploded, killing him and wounding four others.[152]
The injured included Dato Arabashvili, Malkhaz Maisuradze, Nugzar Maisuradze,
and Vaso Papunashvili.[153]
Neighbors drove them to the hospital in Gori and then on to Tbilisi.[154]

On their first visit to Shindisi on August 19, Human Rights
Watch researchers found three M85s at the northern end of town. They also found
two Mk.-4 160mm rockets. Zura Tatrishvili, 62, said at that time, “My garden
is full of [unexploded ordnance]. There are three lines of these small mines.
The lines start at my place and stretch for about a kilometer.”[155]

On October 19 Human Rights Watch researchers identified two
additional M85 duds in fields on the edge of town. Vazha Mazmishvili, 46, said
he had found the duds four to five days earlier. Civilians reported that the
Georgian military had cleared many duds, but that several more remained in the
neighboring fields two months after the conflict. The researchers also found
the inside packaging assembly of a Mk.-4 160mm rocket, which holds the
submunitions before they are released by the canister.

Ditsi

Although they did not cause any civilian casualties, two
incidents in Ditsi highlight how duds create an unsafe environment for the
local population.

One incident is a vivid reminder that children are attracted
to submunitions because they often resemble toys. Having been displaced by the
conflict, Omar Mindiashvili, a 40-year-old driver, and his family returned to
Ditsi six days before Human Rights Watch arrived on October 17. On October 13,
his daughter Salome Mindiashvili, 13, and her cousin Mari Mindiashvili, 13,
were playing on the rooftop porch of their house. They found two M85s, and Mari
began twirling one around on her finger by its ribbon. Mindiashvili told Human
Rights Watch:

Salome called, “Father, come, I’ll show you
something.” I realized it could be something dangerous and took it to the
[Georgian] police. When I saw the [firing] pin in, I realized it was an
explosive. I had seen warning ads on TV.[156]

Afterwards, a neighbor found a third M85 in
Mindiashvili’s backyard, and a deminer came to clear it on October 16.
During Human Rights Watch’s visit, researchers found a red ribbon on the
roof where the girls had been playing.

Describing a second incident, Giorgi Barishvili, 57, said he
picked up a submunition on the side of the road. It looked like a light socket,
but had no ribbon, and he threw it away. When it did not detonate, he gave it
to his son, who tossed it in the water. Only then did it explode. Barishvili
did not recall the exact date of this incident. He also showed Human Rights
Watch part of a Mk.-4 160mm rocket, which delivered M85s and was dug out of
crater in a field outside of the village. It measured 160 millimeters in
diameter and had a characteristic red ring and deployable fins at the base.

Socioeconomic Harm

M85 duds have not only cost lives but also interfered with
livelihoods. Local civilians, who in the Gori District depend heavily on
agriculture, have been forced to choose between going to their farms and
risking injury or death from an unexploded dud, and staying at home and having
little with which to feed their families. Most of those Human Rights Watch
spoke to chose the latter option.

Alika Kikilashvili, the farmer from Brotsleti who was
injured by two duds, described how the weapons have ruined his source of food
and income. In October 2008 he told Human Rights Watch,

I am not going to my fields. The harvest is now ready, but
there are weeds and it is hard to notice anything [suspicious] so I am not
going there. I hope there will be some deminers. My harvest includes apples and
corn, which I sell. That’s how we survive. That’s how people live
here. My peaches were lost completely. Now my apples are.[157]

Other farmers in Brotsleti echoed Kikilashvili’s
comments. After being injured by an explosion in his overgrown plum orchard,
Zhora Chinckriki feared returning to his fields. “Until someone goes to
clean it up, I’m afraid to go back. I don’t know if the deminers
have been in my field,” he said.[158] Sergo
Nikolaishvili, 34, said most of the village shares this sentiment. He told
Human Rights Watch that “unless they do some clearance, people are afraid
to harvest. They have not been able to collect their food.”[159]

Human Rights Watch heard similar statements in towns across
the region. In Shindisi, two women who lived near the site where Vano Gogidze
was killed expressed fear of the duds left behind. “All our gardens and
fields went bad because no one dares to go there to harvest,” said one.[160]
Dato Lapachi, a 46-year-old Tirdznisi farmer, said he was too afraid to farm.[161]
Although Human Rights Watch did not document casualties in Zemo Nikozi, at
least one civilian said he stayed away from his fields because of unexploded
submunitions.[162]

Georgian Statements about Cluster Munitions

Georgian statements about cluster munitions evolved
dramatically from August 2008 to March 2009. Georgia moved from completely
condemning the weapon to acknowledging limited Georgian use to recognizing the
possibility of a deadly failure of Georgian clusters yet defending their
military advantage.

Initial Condemnation

In August 2008 Georgia repeatedly blamed Russia for using
cluster munitions but failed to acknowledge its own use. For example, the
Ministry of Foreign Affairs issued a statement on August 15 that said,
“It must be especially stressed, that the use of cluster munitions
against civilian population is especially cynical next to the background of the
efforts applied by the international community to restrict and even ban such
types of weaponry.”[163]
The same day, Georgian President Mikheil Saakashvili, in a press conference
with US Secretary of State Condoleezza Rice, described cluster munitions as
“an inhuman weapon” and the Russians as “21st
century barbarians” and “cold-blooded killers” for using them
against civilians.[164]

Acknowledgment of Use

In early September, however, Georgia acknowledged its own
use of cluster munitions. In a letter to Human Rights Watch made public on
September 1, the Georgian Ministry of Defense stated that it had used cluster
munitions “against Russian military equipment and armament marching from
Rocki [sic] tunnel to Dzara road.” The ministry also insisted that
cluster munitions “were never used against civilians, civilian targets
and civilian populated or nearby areas.”

The letter, later made public, identified the type of
cluster munitions used as Mk.-4 LAR160 rockets carrying M85 submunitions. It said the rockets were launched from the GRADLAR 160 multiple launch
rocket system and had a range of 45 kilometers. It also claimed Georgia only
had M85s with self-destruct mechanisms. The ministry denied launching rockets
toward Shindisi, despite Human Rights Watch’s discovery of M85s there. It
also said the Russians had not destroyed any GRADLAR launchers during the war.

The ministry concluded:

The discovery of M85 bomblets in Shindisi
raises a lot of suspicion.... This fact demands proper investigation and
Georgian side is ready to participate in and provide all necessary assistance
for the conduc[t] of such investigation. If needed, for the investigation
purposes, we can provide the name of the supplier company.[165]

Confusion and Investigation

In a meeting with Human Rights Watch on October 21, 2008,
then-First Deputy Minister of Defense Batu Kutelia presented a more nuanced
position on Georgia’s use of cluster munitions. He said Georgia has
limited M85 stocks and used them only against Russian troops in the area north of
Tskhinvali. He did not deny, however, that the M85s Human Rights Watch found in
Georgia could be Georgian weapons.

Kutelia said he could not explain the presence of M85
submunitions in areas south of the South Ossetian administrative border. He
said:

We received reports of M85s in a number of Georgian
villages. How they ended up there is unclear. Our system would not fire there
itself.... Perhaps an accident happened. That might be the explanation….
It’s a real mystery how they ended up there. It is physically impossible
someone fired there.

He said Georgia had opened an investigation into the
situation and had requested assistance from the company from which they bought
the weapons.[166]
He did not disclose the name of the company, but it is presumably Israel Military
Industries.

A massive failure is one possible explanation for the many
M85 duds Human Rights Watch documented south of the South Ossetian border. In
villages other than Tirdznisi and Shindisi, Human Rights Watch found no
evidence of M85 submunitions that exploded on impact and much evidence of M85s
that had failed to function. According to witnesses, there were also no Russian
troops in the areas hit at the time of the strikes. The Mk.-4 rocket has a
minimum range of 12 kilometers.[167]
According to Kutelia, Georgia fired its rockets from about eight to ten
kilometers north of Gori (although the Georgian Ministry of Defense, in a
February 2009 response to a Human Rights Watch inquiry, refused to release more
detailed information about the launch sites, saying that the information
“is not public”).[168]
If Kutelia’s information about the launch sites is correct, the rockets
that landed in the Gori District fell short of their minimum range, which would
explain why there were high dud rates and why so many submunitions were
unarmed.

Georgian officials claimed that their military directed cluster
munition strikes only against military targets in fairly unpopulated areas just
south of the Roki Tunnel. If a massive failure of the weapons system caused the
civilian casualties and contamination of a large populated area in the Gori District,
however, the consequences of the failure highlight the danger of these weapons.
The large number of submunitions dramatically increases the harm caused by any
failure.

Kutelia also expressed surprise at the large number of M85
duds found not only by Human Rights Watch researchers but also by Georgian
military deminers. Like the former, the latter found no evidence of
self-destruct mechanisms, but according to Kutelia, “our contract was for
self-destruct.” He said the Ministry of Defense, with the company’s
help, would also investigate that issue.[169]

Echoing Kutelia’s statements, in February 2009, the
Ministry of Defense wrote to Human Rights Watch that the M85s may have landed in
the Gori District because of a “failure of the weapons system.” It
said a final answer would have to wait for the findings of the investigation,
which was ongoing at that time.[170]
The investigation, however, does not appear to be looking into Georgian use of
cluster munitions in South Ossetia and the possibility that international
humanitarian law violations occurred there. Such a study is necessary for a
full understanding of the effects of Georgia’s use in this conflict.

In its February 2009 letter to Human Rights Watch, the
Georgian Ministry of Defense wrote that it still has RBK-500 cluster munitions
and BKF blocks of submuntions, but that their shelf-lives have expired and that
they are slated for destruction.[171]

While acknowledging the presence of submunition duds in
Georgian towns and villages and the possibility that a massive failure
occurred, in October 2008 Kutelia said that Georgia’s cluster munitions
had military utility, helping Georgia “contain the Russians for two
days.”[172]
He added that the Ministry of Foreign Affairs was asking the Ministry of
Defense for its opinion on the Convention on Cluster Munitions. Kutelia said:

As an agency, the Ministry of Defense in principle supports
this type of convention to help us diminish civilian casualties and
indiscriminate attacks on populated areas. We are ready to start reviewing, but
we are not ready to make a commitment to abolish them from our arsenal....
Since Georgia is still under the occupation of a foreign military [referring to
Russian troops in South Ossetia and Abkhazia], it is very sensitive for us.[173]

As a result, although Georgia has joined CCW Protocol V, the
Ministry of Defense has recommended that Georgia not sign the Convention on
Cluster Munitions at this point. It told Human Rights Watch that it is
considering replacing cluster munitions with an alternative but has immediate
concerns about cost and security. Minister of Defense Vasil Sikharelidze
himself said, “We need something more effective and need to be able to
defend ourselves…. Technically cluster munitions should be possible to
replace. How quickly and what would we replace them with? We don’t
know.”[174]

Legal Analysis

As previously mentioned, Human Rights Watch has not
conducted an in-depth investigation into the use of cluster munitions in the
area south of the Roki Tunnel, which the Georgians acknowledge having targeted
with cluster munitions, and therefore, it cannot assess whether strikes in this
area were in violation of international humanitarian law. If Georgia’s strikes
on populated areas documented by Human Rights Watch further south were
intentional, then they violated international humanitarian law.[175]
These strikes landed in or near towns and villages, and Human Rights Watch
believes that cluster munition attacks in such locations are indiscriminate and
thus unlawful. The attacks if intentional were also likely disproportionate.
Human Rights Watch found no evidence of the Russian military at any of the
strike sites at the time of the strikes, and the rockets caused civilian
casualties both during attacks and afterwards. Human Rights Watch believes
there should be a presumption that cluster attacks on populated areas are
disproportionate, and the evidence in these cases supports that position.

If Georgia’s cluster munitions suffered from massive
failure, it would highlight that cluster munitions are highly dangerous when
used in any circumstances. They can cause significant humanitarian harm when
they fail.

To address the problems caused by these failed munitions,
the Georgian military has carried out significant clearance of submunition
duds, as will be discussed below. It should supplement these efforts by sharing
with international, nongovernmental deminers information on strike locations,
weapon types, and numbers of submunitions used, in order to facilitate and
expedite their clearance work. It should also share information about its
strikes in South Ossetia with those clearing submunitions in that region. It
should embrace CCW Protocol V’s standards while waiting for it to enter
into force.

The cluster munitions used by Georgia fall under the scope
of the new Convention on Cluster Munitions, and for those states party to the
convention, their future use would violate its basic prohibition on all use of
cluster munitions.

Georgia, like all states, should sign and ratify the
Convention on Cluster Munitions as soon as possible. It would not only assume
responsibility under the convention but also benefit from it. If it became a
state party, Georgia, as an affected state, would be eligible for international
support for clearance, risk education, and victim assistance once the treaty
entered into force.

If it cannot join the treaty at this point, Georgia should
take immediate interim measures to minimize the humanitarian harm of cluster
munitions. It should ban use in populated areas and adopt remedial measures to
ensure civilians are not harmed from the duds it left behind. Most urgently, it
should continue to provide further assistance for clearance and risk education.

Clearance and Risk Education

To stop the number of civilian casualties from duds from
rising, efficient and effective clearance is imperative. “If I find one
cluster, I save one life,” said Amir Musanovic, who in October 2008 was
leading a team of NPA deminers in Ruisi.[176] NPA estimated then
that there were “thousands” of unexploded submunitions to be
cleared.[177]
As of February 2009, international deminers estimated submunitions had
contaminated 15 million square meters, and they expected to continue clearance
in Georgia until at least August 2009.[178] Human Rights
Watch’s investigation showed that many of the submunitions were hidden in
cornfields and cabbage beds, and by February, most of the remaining
submunitions were buried below the surface.[179] This situation
has not only caused socioeconomic harm but also complicated clearance.

Since the end of the war, both military and NGO deminers
have tackled the problem. They have faced a range of challenges, including
their different standards of clearance as well as a lack of resources,
environmental factors, and complications from civilians. With better
coordination and ongoing risk education programs, however, they can keep the
number of civilian casualties from duds to a minimum.

Russian Military

Before they withdrew from the buffer zone adjoining South
Ossetia on October 10,[180]
Russian forces did extensive clearance of submunitions. Civilians reported
clearance by Russian troops in Disti, Kvemo Khviti, Tirdznisi, Variani,
Varianis Meurneoba, and Zemo Khviti.[181] Multiple
residents of a neighborhood in Variani said the Russian forces had removed duds
from their homes and gardens,[182]
and several civilians of other villages reported that the Russian troops
cleared “a lot.”[183]
The Russian forces may have also destroyed duds elsewhere, but the full extent
of their efforts is unknown. They have not publicly reported on their
clearance, and in its official letter to Human Rights Watch on January 30,
2009, the Ministry of Foreign Affairs did not respond to a request for information
about its clearance efforts.[184]
That letter also did not answer a question about whether Russia had provided
strike data, including the locations, types, and numbers of cluster munitions
used, to deminers in either Georgia or South Ossetia. As of February 2009,
deminers working in the Gori and Kareli districts of Georgia had not received
such information, which is necessary to facilitate clearance.[185]

Russia should continue to provide assistance with clearance
to ensure civilians are not killed or injured by the duds left behind. Such
assistance should ideally meet the standards of the Convention on Cluster
Munitions, but it should at least follow the provisions laid out in CCW
Protocol V, which entered into force for Russia in January 2009. According to both
instruments, Russia should provide technical, financial, material, or human
assistance for clearance. In particular, Russia should immediately share with
demining organizations on the ground the specific locations of cluster munition
attacks and the specific types and quantities of weapons used.

Georgian Military

More is known about clearance by the Georgian military. When
Russian forces withdrew from Gori and Kareli districts, the Georgian military
stepped in with an engineering brigade of 80 deminers.[186]
In October 2008, local residents noted Georgian clearance in Brotsleti,
Dzlevijvari, Shindisi, Tirdznisi, and Variani,[187]
and it might have been occurring in other towns as well. In Variani, for
example, Tengo Kebadze said Georgian troops removed 27 duds from his cherry
orchard. “They cleared on the spot—as soon as they came in, after
the Russians left,” Kebadze said.[188] By February 2009
the Georgian military deminers had ceased their operations, but NPA was
training 24 national deminers who were scheduled to start work in March 2009.[189]

While the Georgian deminers cleared large numbers of duds
over a wide area,[190]
they focused on surface clearance at the expense of more systematic clearance
that also deals with submunitions below the surface. An officer in charge of
military engineers said in October 2008, “We are in almost all villages
with six-man teams.... We take a village and start demining. We do systematic
surface clearance. We do our best to clear the surface. Then we give territory
to [international deminers] to do subsurface.”[191]
The International Campaign to Ban Landmines’ Landmine Monitor Report
2008 reported that before the war Georgia hoped to upgrade its clearance
standards to meet the widely accepted International Mine Action Standards,[192]
but it had not done so as of fall 2008. Mick McDonnell, operations manager of Information
Management & Mine Action Programs (iMMAP), told Human Rights Watch in
October 2008, “Georgians are doing the first level of clearance flat out.
Their response should be applauded. A lot of countries don’t do
that.” As McDonnell pointed out, however, this procedure has created
challenges that will be discussed below.[193]

Humanitarian concerns guided Georgian clearance efforts,
according the officer in charge. The deminers prioritized the submunitions most
tempting to children. He said, “Everything that is beautiful or
attractive to kids, we destroy first.”[194] Furthermore,
these deminers tried to remove duds from the area before destroying them. If it
was not possible to render them safe and move them, they destroyed unexploded
submunitions in situ.[195]

Even looking only on the surface, Georgian deminers
expressed surprise at the high number of duds, especially M85s, they found. The
high-ranking engineer said, “For us what is surprising as professionals
is all the cluster munitions we’re finding there, and the problem is the
majority [of the M85s that were launched] are unexploded.”[196]
The officer said they passed the information they found on to the Ministry of
Defense for its M85 investigation.

Georgia should coordinate on clearance with international
demining organizations, including by providing details on the clearance done by
the Georgian military and by providing information on the specific locations of
cluster munitions attacks and the specific types and quantities of weapons
used. Its performance of remedial measures should ideally meet the standards of
the Convention on Cluster Munitions, but it should at least follow the
provisions laid out in CCW Protocol V, which will enter into force for Georgia
in June 2009.

Georgia should also provide assistance with any remedial
measures necessary in South Ossetia, including by providing strike data to
those in charge of clearance. Such assistance should ideally meet the standards
of the Convention on Cluster Munitions, but it should at least follow the
provisions laid out in CCW Protocol V.

NGO Clearance

NGOs have also played an important role in cluster munition
clearance in Georgia. HALO Trust and NPA have taken charge of the fieldwork, while
iMMAP is serving in a coordination role.

HALO Trust, a non-profit organization that
“specialises in the removal of the hazardous debris of war,”[197]
started clearance immediately because it already had established clearance
programs in Georgia’s breakaway region of Abkhazia.[198]
As of February 2008 it had about 30 teams of 12 deminers, totaling 360
deminers, in action.[199]
It has assumed responsibility for surveying and mapping areas contaminated with
submuniton duds and other forms of unexploded ordnance.[200]
Human Rights Watch found HALO Trust’s red warning signs in several towns
it visited, and HALO Trust has published maps of danger areas along the
Gori-Tskhinvali corridor south of the South Ossetian administrative border.[201]
It has also conducted clearance, including in Akhaldaba, Brotsleti, Pkhvenisi,
Ruisi, Shindisi, and Tirdznisi.[202]
Like Human Rights Watch, HALO Trust has found three types of submunitions: the
AO-2.5 RTM, 9N210, and M85.[203]

A humanitarian organization whose work includes demining and
anti-cluster munition advocacy,[204]
NPA joined the clearance efforts at the end of September 2008. To expedite the
process, it brought in experienced deminers who have worked in Bosnia and
Herzegovina and Lebanon. Between September and December 2008 its deminers had control
of 1.5 million square meters of contaminated land in Ruisi and cleared 35 9N210
submunitions. “We started in Ruisi because we couldn’t enter the
buffer zone [that Russia occupied before October 10],” said then-Program
Manager Joseph Huber. “If there’s a higher priority, we’d
move.”[205]
In March 2009 Huber’s replacement, Jonathon Guthrie, reported that NPA
was working in Kvemo Khviti, where it has found 9N210s and M85s, and Zemo
Nikozi, where it has found 9N210s.[206]
It expected to complete clearance in those villages by August 2009. It is now
responsible for clearing two million square meters.[207]

These international NGOs follow International Mine Action
Standards, which are higher than the standards used by the Georgian military.
Amir Musanovic, who was leading NPA’s clearance team in Ruisi, described
a three-level approach to clearance. Visual clearance focuses on surface
submunitions, and subsurface clearance targets submunitions either 10
centimeters or 30 centimeters deep. NPA has looked for submunitions at all of
those levels, allowing it to find 9N210s buried about 35 centimeters in the
ground. In Ruisi, the complete process took 15 days for an approximately
100,000 square meter area covered by a 12-person team. To prevent casualties
and achieve desired clearance rates, NPA surveys land even when residents claim
it has been cleared. It also carefully marks danger areas with red sticks and
safe ones with white sticks.[208]

While HALO Trust and NPA work on the clearance itself, iMMAP
provides coordination. A leader in the development of landmine and cluster
surveying technologies, iMMAP provides mapping and management services to those
involved in clearance, including setting up an Explosive Remnants of War
Coordination Center to administer the work of the various demining actors.[209]
In Georgia, its role is to coordinate the activities of all deminers, whether
military or NGO, and serve as a clearinghouse of information. According to
Operations Manager McDonnell, iMMAP had been trying to establish an office in
Georgia for seven years, but the recent conflict finally persuaded Georgia to
agree to one in mid-October.[210]
It has since coordinated with about a dozen government agencies as well as HALO
Trust and NPA to promote information exchange and cooperation. It is also
working with other organizations on a survey of civilian casualties.[211]

Community Clearance

As in most conflicts involving cluster munitions, local
people have also tried to clear duds. Community clearance endangers the
individual doing it and others in the area because civilians generally use
unsafe methods to destroy submunitions. It also complicates the work of
professional deminers because it disturbs the ordnance while often failing to
destroy it. Despite the risks, locals say they are driven to clear by the need
to protect their families and to work in their fields.

The clearance by Ramaz Pataradze, a 38-year-old farmer,
exemplifies the problem. Pataradze described putting cardboard boxes over M85s
in the fields of Shindisi and laying twigs on top. Then he lit the twigs to
blow up the submunitions. He said he had done this 10 to 15 times between
August 21 and October 17. Although he had seen warnings on posters and on
television, he explained that personal safety and economic necessity drove him to
take the risk; he walks through the fields with his cows even at night.
“I’m going there [to the contaminated field] to harvest and take my
cows. What should I do?” he asked.[212] While some
Georgians have made the same choice as Pataradze, Guthrie reported an ongoing
problem in February 2009.[213]
Human Rights Watch found that far fewer had done so than in previous conflicts
where cluster munitions were used, such as Lebanon, Iraq, and Afghanistan.[214]

Challenges

Deminers have faced numerous challenges in the course of
cluster munition clearance although many of them have been reduced over time.
Challenges have ranged from coordination to resource shortages, from
environmental factors to complications from civilians.

Coordination

One of the biggest initial challenges was a lack of
coordination among various demining agencies, which used different methods of
clearance. As described above, the Georgian military focused on faster, surface
clearance, and the international organizations adopt a slower but more thorough
approach. The contrast frustrated international deminers, who follow
international standards and want information on exactly what other groups have
cleared. In October 2008 Huber said, “The problem we have is the Georgian
Army and Ministry of Interior are collecting and destroying stuff. No one knows
what they’re doing. There’s a gap if nothing is recorded. It will
be a problem for future clearance. We have to redo from the beginning without
knowing where the strikes were.”[215] Huber continued,
“The Georgian Army is running all over the place. They remove what they
find on the surface, but if there’s a problem, there is no marking, no
register. That’s changing. We’re asking them to mark.”[216]
According to McDonnell of iMMAP, who was striving to bring the groups together,
the Georgian deminers in turn distrusted the foreigners.[217]

The difference in approaches was not merely an internal
debate, but has also affected civilians. To clarify the distinction, an officer
in charge of the Georgian deminers said, “[The Georgian military]
distribute[s] posters, and when done with our clearance, we tell the local
population to wait until the subsurface is done.... We don’t give any
guarantees.”[218]
A Shindisi woman recognized the limitations of surface-only clearance.
“The deminers did visual clearance but have not done a thorough search of
the area. I don’t go to my garden. I am afraid of this area. Two of them
fell near my house, and I saw the clearance done.”[219]
While this woman understood that the surface approach was insufficient, others
may have become confused by the mixed messages.[220]
They may have assumed since a group did some clearance, even surface clearance,
an area must be safe, but in fact subsurface submunitions continue to pose
risks. The Georgian military has since ceased regular demining, and NPA reports
now having good relationships with military authorities.[221]

Resource Shortages

Resource shortages also interfered with early clearance.
According to NPA, getting enough explosives to destroy the submunition duds it
found had been a major impediment to demining.[222]

For the Georgian military, the loss of equipment during the
conflict presented an obstacle to clearance. “We [the deminers] did not
participate in the war, and we lost our equipment when the Russians took it. We
had a new system of mine searching, specialized demining vehicles, all of which
were taken by the Russians. There was a lot of capacity lost, and that’s
an impediment,” said the engineering officer.[223]

In February 2009 McDonnell and Guthrie said the earlier
resource shortages had been resolved, but McDonnell noted that “clearance
operations are nearly always under resourced.”[224]
Guthrie added that that lack of information remained a major problem.[225]

Environmental Factors

The environment also has threatened the progress of
clearance. Huber highlighted the difficulties of clearing submunitions among
trees and in cornfields. “It is not that easy to work in these areas.
People want to harvest,” he said. In October 2008 Musanovic was worried
about the approaching winter. “We will do a survey in the whole village
because with the snow we will lose all evidence.”[226]
Snow both covers duds and creates mud, driving them deeper underground. The
Georgian military also expressed concern about the coming of winter and said
its goal was to finish clearance before it sets in.[227] In
February 2009 Guthrie said that winter had indeed proved to be “a major
obstacle” and that clearance efforts had been suspended for parts of
December and January.[228]

Complications from Civilians

Finally, civilians themselves have presented challenges. As
mentioned above, some have tried to clear the submunitions themselves. Others
have interfered with the marking process, unsure of what best serves their
communities. Vasili Omadze, a 26-year-old farmer, said deminers searched some
farms in Sakasheti with metal detectors, which started beeping loudly
indicating the presence of unexploded ordnance. “They wanted to mark the
fields [with red warning signs], but the locals wouldn’t let them because
it makes children more curious,” Omadze said. “They wanted to mark
my field, and I wouldn’t let them.”[229]

Risk Education

In an effort to reduce further casualties, several groups
collaborated immediately after the conflict to provide civilians with
information regarding the danger of submunition duds. Risk education efforts
included civil service announcements on the radio and television, programs at
schools and internally displaced persons (IDP) camps, and fliers and posters.[230]
HALO Trust took the lead on many of these efforts,[231]
but the Georgian Ministry of Education and Science and UNICEF also contributed.[232]
The Georgian government responded swiftly to Human Rights Watch’s
insistence on risk education in August 2008; it regularly aired educational
videos and distributed fliers with a hotline number to call if something
suspicious was found. By December 2008, risk education had been conducted in at
least 180 schools,[233]
and 44,000 Georgians had received information about the risks of cluster
munitions and other unexploded ordnance.[234]

Witness testimony and the limited number of civilian
casualties from duds suggest that these programs have been successful in at
least some cases. They may have saved 68-year-old Tamar Eremov’s life.
She was looking for walnuts when she found an unexploded AO-2.5 RTM at the base
of a tree in Variani. “I almost touched it, but then I remembered the
leaflets that were given out and didn’t,” Eremov said.[235]
As described earlier, Omar Mindiashvili knew immediately to stop his daughter
and her cousin from playing with an M85 in Ditsi because he had seen warnings
on television.[236]
While in an IDP tent city between October 7 and 8, Sergo Nikolaishvili said
that he and other Brotsleti residents received photos and flyers from Georgians
and NGOs alerting them to the danger of duds.[237]

Victim Assistance

Victim assistance for individuals and communities is another
critical humanitarian measure. According to the Landmine Monitor Report 2008,
“The medical and rehabilitation sectors in Georgia suffer from lack of funding,
poor infrastructure and equipment, inadequate and low-quality services, and
corruption.”[238]
When asked in October 2008 about assistance for cluster munition survivors of
the 2008 war, then- Georgian First Deputy Minister of Defense Kutelia said Georgia
had not established any formal programs. He explained, “Our general
policy is the same regardless of the type of munition. We request assistance
from different countries. For the most expensive ones, like those who have lost
limbs, we ask governments and companies to collaborate with us to provide
assistance. For example, some were taken to Israel for treatment.”[239]
McDonnell said, in October 2008, that iMMAP was starting to investigate the
status of victim assistance, but he did not provide information on the progress
of the investigation in an email to Human Rights Watch in February 2009.

Conclusion

The use of cluster munitions in Georgia in August 2008
highlighted the danger of the weapons and the need to ban them. Both Russia and
Georgia launched cluster munition attacks yet came from different
positions—producer and importer, large stockpiler and small stockpiler,
repeat user and new user. In all, their cluster munition attacks caused the
death or injury of 70 civilians during and after the conflict as well as
ongoing socioeconomic harm.

Russia violated multiple provisions of international
humanitarian law with its use of cluster munitions. Its attacks in or near
villages, towns, and one city were inherently indiscriminate and thus unlawful.
They were also likely disproportionate. Human Rights Watch presumes that
cluster attacks in or near populated areas are disproportionate, and the lack
of evidence of Georgian troops in the vicinity combined with the foreseeable
civilian harm supports that presumption. Russian authorities continue to deny
they used cluster munitions in the course of the conflict.

Georgia also used cluster munitions that landed in or near
populated areas in the Gori District, but it said they were aiming at Russian
military personnel and equipment north of Tskhinvali. The possibility that the
Georgian weapons suffered a massive failure would explain why the cluster
munitions fell short, why they had such high failure rates, why so many
submunitions were unarmed, and why witnesses reported no Russian troops in the
vicinity of the strikes. Georgian authorities told Human Rights Watch they are
investigating what happened. Regardless of their conclusion, these incidents
underscore the unreliability and humanitarian risks of these weapons.

The use and effects of cluster munitions in this conflict
should serve as an impetus for all states to sign and ratify the Convention on
Cluster Munitions as soon as possible. Although not yet legally binding, the
fact that 96 states have signed the Convention on Cluster Munitions as of March
2009 demonstrates that there is widespread international support for its
principles. Russia and Georgia’s actions ignored this expression of
ever-increasing condemnation of the weapon. Looking to the future, they should
now not only become parties to the convention but also immediately comply with
its standards on clearance, risk education, and victim assistance. If they
cannot sign and ratify the convention at this point, they should establish
interim measures to reduce the humanitarian impact of cluster munitions. The
international community should strive to make the Georgian conflict the last in
which civilians lose both lives and livelihoods to this pernicious weapon.

Acknowledgments

This report was written by Bonnie Docherty, researcher in
the Arms Division of Human Rights Watch. Field research was conducted by Bonnie
Docherty, Marc Garlasco, senior military analyst in the Emergencies Division, Giorgi
Gogia, Caucasus researcher, and Ole Solvang, consultant for the Europe and
Central Asia Division. Steve Goose, director of the Arms Division, edited the
report. Rachel Denber, deputy director of the Europe and Central Asia Division,
and Mark Hiznay, senior researcher in the Arms Division, reviewed it. Rebecca
Agule and Vladyslav Lanovoy, students in the International Human Rights Clinic
at Harvard Law School’s Human Rights Program, contributed to the writing
of the report.

Human Rights Watch would like to thank Matthew McKinzie for
providing maps and satellite imagery graphics and Digital Globe for the
satellite images.

Human Rights Watch would also like to thank all of the
people in Georgia who provided assistance with this report, including victims,
witnesses, deminers, NGO representatives, and government officials.

[1]
Human Rights Watch, Civilian Deaths in the NATO Air Campaign, vol. 12,
no. 1(D), February 2000, http://www.hrw.org/en/node/78680/; Fatally Flawed:
Cluster Bombs and Their Use by the United States in Afghanistan,vol.
14, no. 7(G), December 2002,
http://www.hrw.org/en/reports/2002/12/18/fatally-flawed-0/; Off Target: The
Conduct of the War and Civilian Casualties in Iraq (New York: Human Rights
Watch, 2003), http://www.hrw.org/en/reports/2003/12/11/target-0/; Civilians
under Assault: Hezbollah’s Rocket Attacks on Israel in the 2006 War,
vol. 19, no. 3(E), August 2007, http://www.hrw.org/en/reports/2007/08/28/civilians-under-assault/,
pp. 44-48; Flooding South Lebanon: Israel’s Use of Cluster Munitions
in Lebanon in July and August 2006,vol.20, no. 2(E),
February 2008,
http://www.hrw.org/en/reports/2008/02/16/flooding-south-lebanon-0/.

[2]
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick
in Armed Forces in the Field (First Geneva Convention), adopted August 12,
1949, 75 U.N.T.S. 31, entered into force October 21, 1950; Geneva Convention
for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members
of Armed Forces at Sea (Second Geneva Convention), adopted August 12, 1949, 75
U.N.T.S. 85, entered into force October 21, 1950; Geneva Convention Relative to
the Treatment of Prisoners of War (Third Geneva Convention), adopted August 12,
1949, 75 U.N.T.S. 135, entered into force October 21, 1950; Geneva Convention
Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva
Convention), adopted August 12, 1949, 75 U.N.T.S. 287, entered into force
October 21, 1950; Protocol Additional to the Geneva Conventions of 12 August
1949 relating to the Protection of Victims of International Armed Conflicts
(Protocol I), adopted June 8, 1977, 1125 U.N.T.S. 3, entered into force
December 7, 1978 (“Protocol I”).

[3]
See Legality of the Threat of Use of Nuclear Weapons, Advisory Opinion,
International Court of Justice, July 8, 1996, para. 78. “States must
never make civilians the object of attack and must consequently never use
weapons that are incapable of distinguishing between civilian and military
targets.” The International Court of Justice interpreted the principle of
distinction as falling within the remits of customary international law, and
Judge Bedjaoui even considered it to be jus cogens while Judge Guillaume
stated that it was absolute. See Declaration of Judge Bedjaoui, para. 21, and
Separate Opinion of Judge Guillaume, para. 5.

[13]
See generally Legality of the Threat or Use of Nuclear Weapons, Advisory
Opinion, on the issue of proportionality and long-term impact of a weapon.

[14]
For the foreseeability of the long-term impact of cluster munitions, see
generally Human Rights Watch, Fatally Flawed; Off Target; Flooding
South Lebanon.

[15]Third Review Conference of the High Contracting
Parties to the CCW, “Final Document, Part II, Final Declaration,”
CCW/CONF.III/11 (Part II), Geneva, November 7-17, 2006, p. 4

[16]
Human Rights Watch and the International Human Rights Clinic, Harvard Law
School, Cluster Munitions and the Proportionality Test:Memorandum to
the Delegates of the Convention on Conventional Weapons, April 2008, http://www.hrw.org/sites/default/files/related_material/arms0408web.pdf.

[22]
Many of Protocol V’s provisions have qualifying language. For example,
Article 3 says “as soon as feasible,” Article 4 “as far as
practicable,” and Articles 7 and 8 “in a position to do so.”
Its “generic preventive measures,” laid out in Article 9 and the
Technical Annex, are voluntary and refer to measures for reducing a
weapon’s failure rate, not eliminating or circumscribing its use.

[23]
Convention on Cluster Munitions, adopted May 30, 2008, Diplomatic Conference for
the Adoption of a Convention on Cluster Munitions, CCM/77, opened for signature
December 3, 2008, http://www.clustermunitionsdublin.ie/pdf/ENGLISHfinaltext.pdf
(accessed March 30, 2009) (“Convention on Cluster Munitions”).

[28]
Ibid., art. 2(2). The Convention on Cluster Munitions definition explicitly
excludes some weapons that meet that technical description but do not cause the
same humanitarian harm as cluster munitions, but none of the weapons used in
Georgia fall under the exclusion.

[30] Ibid.,
art. 4(4). That assistance can take a variety of forms, including “technical,
financial, material or human,” but must include information on the types,
quantities, and locations of cluster munitions used.

[31] Ibid.,
arts. 2(1), 5. In keeping with international humanitarian and human rights law,
states parties must provide varied kinds of assistance, including medical care,
rehabilitation, and psychological support, and “provide for…social
and economic inclusion.”

[39]
The Georgian Ministry of Defense reports having RBK-500 cluster munitions and
BKF blocks of submunitions that are carried in KMGUs, but it told Human Rights
Watch that their shelf-lives have expired and they are slated for destruction.
Response of Georgian Ministry of Defense to Human Rights Watch Questions,
February 12, 2009.

[59]
Dutch Ministry of Foreign Affairs, “Report of the Storimans Investigative
Mission,” p. 6. See also Human Rights Watch telephone interview with
Adriaan Jacobovits, former ambassador and head of Storimans Investigative
Mission, November 19, 2008.

[60]
Human Rights Watch has not been able to determine the significance of the
difference between the red and white ribbons. This conflict was the first in
which it saw the red ribbons. British forces used white-ribboned versions in
Iraq, and the Israelis did the same in Lebanon. Norway possesses, but has not
used, the red-ribboned variety. The Georgian Ministry of Defense told Human
Rights Watch it knows of “no technical difference” between the two
models. Response of Georgian Ministry of Defense to Human Rights Watch Questions,
February 12, 2009.

[64]
Military experts from numerous countries that stockpile the M85 or variants of
it have made this claim in discussions with Human Rights Watch during sessions
of the CCW in recent years.

[65]
For a detailed discussion of the M85 with self-destruct device and its failure
in Lebanon, see C. King Associates, Ltd., Norwegian Defence Research
Establishment, and Norwegian People's Aid, M85: An Analysis of Reliability
(Norway: Norwegian People's Aid, 2007). See also information provided by Ove
Dullum, Chief Scientist, Norwegian Defence Research Establishment, April 19,
2007; Chris Clark, program manager, Mine Action Coordination Center–South
Lebanon, "Unexploded Cluster Bombs and Submunitions in South Lebanon:
Reliability from a Field Perspective," presented at the International
Committee of the Red Cross Expert Meeting, Montreux, Switzerland, April 18-20,
2007; email communication from Dalya Farran, media and post clearance officer,
Mine Action Coordination Center–South Lebanon, to Human Rights Watch,
January 16, 2008. For further information on the use and failure of M85s in
Lebanon, see Human Rights Watch, Flooding South Lebanon, pp. 30-32,
45-48.

[69]
Widely respected sources on arms arsenals, including Jane’s and the
International Institute of Strategic Studies, have not reported any Georgian
stockpiles of these weapons. As stated in the Dutch investigative report, the
Iskander is believed to be stockpiled only by Russia. Dutch Ministry of Foreign
Affairs, “Report of the Storimans Investigative Mission,” p. 6.

[71]
For a full discussion of international humanitarian law violations by Russia in
the August 2008 conflict, see Human Rights Watch, Up in Flames: Humanitarian
Law Violations and Civilian Victims in the Conflict over South Ossetia,
1-56432-427-3, January 2009, http://www.hrw.org/en/reports/2009/01/22/flames-0.

[102]
See, for example, Human Rights Watch interview with Tsiala Beruashvili, October
15, 2008; Human Rights Watch interview with shop woman, Ruisi, October 15,
2008; Human Rights Watch interview with Ushangi Beruashvili, Khashauri
hospital, August 24, 2008 (saying he believed the attacks were targeting
Georgian military two kilometers outside of town); Human Rights Watch interview
with Naira Mindiashvili, Tbilisi, August 17, 2008 (saying that there were no
military objects in Ruisi and that the Georgian military was closer to
Variani); Human Rights Watch interview with Marine Vardzelashvili, August 22,
2008.

[115]
Human Rights Watch interview with Tengo Kebadze, Variani, October 18, 2008
(reporting deminers cleared 27 submunitions from his cherry orchard); Human
Rights Watch interview with Lia Kereselidze, October 18, 2008 (reporting
deminers had cleared four submuntions in her garden); Human Rights Watch
interview with Teimuraz Khizanishvili, October 18, 2008 (reporting deminers had
cleared two submunitions from his home); Human Rights Watch interview with
Nukri Stepanishvili, Variani, October 18, 2008 (reporting two submunitions had
been removed from his home); Human Rights Watch interview with Anzor
Zubashvili, October 18, 2008 (reporting two explosions and six duds in his
yard); Human Rights Watch interview, Galaktion Zubashvili, October 18, 2008
(reporting four explosions and three duds in his and his neighbor’s
yard).

[116]
Human Rights Watch interview with Archil Khizanishvili, Variani, October 18,
2008 (saying there were troops in town at other times but not at the time of
this incident); Human Rights Watch interview with Teimuraz Khizanishvili,
October 18, 2008 (saying that Georgian troops were not in town at the time of
this attack but could have been outside the town); Human Rights Watch interview
with Galaktion Zubashvili, October 18, 2008 (saying that Georgian troops were
by a river outside of town).

[128]
“Russia Did Not Use Cluster Bombs in the Zone of the Georgian-South
Ossetian Conflict Zone” (“Россиянеиспользовалакассетныебомбывзонегрузино-осетинскогоконфликта”),
Ministry of Defense of the Russian Federation news release, August 15, 2008,
http://www.mil.ru/info/1069/details/index.shtml?id=49501 (accessed November 14,
2008).

[130]Russian Ministry of Defense, “Russian
Troops Did Not Use the Iskander Missile System in South Ossetia” (МинистерствообороныРоссийскойФедерации, “Российскиевойсканеприменяликомплекс 'Искандер' вЮжнойОсетии”), August 16, 2008, http://www.mil.ru/info/1069/details/index.shtml?id=49537.

[132]
Ministry of Foreign Affairs of the Russian Federation, “Response by the
Russian Foreign Ministry’s Spokesman to a Media Question About the Death
in Gori, Georgia, of a Netherlands Citizen in August 2008,” October 23,
2008, http://www.ln.mid.ru/brp_4.nsf/sps/33BCABA43279F37FC3257523003F9EC7(accessed
April 1, 2009).

[139]
Letter from M.G. Yadrov, head, Department for International Legal Cooperation's
Investigative Committee, Office of the Prosecutor General of the Russian
Federation, to Human Rights Watch, February 27, 2009 (on file with Human Rights
Watch). According to a March 26, 2009 press report, a Prosecutor
General’s Office spokesman said that cluster munition debris was found in
the South Ossetian village of Pris. “Russian Claims Proof Georgia Used
Cluster Munitions,” Russia Today, March 26, 2009, http://www.russiatoday.com/Top_News/2009-03-26/Russia_claims_proof_Georgia_used_cluster_weapons.html
(accessed March 28, 2009).

[140]
In initial reports, Human Rights Watch attributed the M85 attacks around
Pkhvenisi and Shindisi to Russia, based upon the accounts of nearly a dozen
witnesses, interviewed separately, who said that Russian air strikes on Georgian
armored units in the area were followed by extensive cluster munition strikes.
There were no Russian ground forces reported in the area at that stage of the
conflict. “Georgia: Civilians Killed by Russian Cluster Bomb
‘Duds,’” Human Rights Watch news release, August 21, 2008,
http://www.hrw.org/en/news/2008/08/21/georgia-civilians-killed-russian-cluster-bomb-duds.
Further investigations led Human Rights Watch to change that original
attribution. “Clarification Regarding Use of Cluster Munitions in Georgia,”
Human Rights Watch news release, September 3, 2008,
http://www.hrw.org/en/news/2008/09/03/clarification-regarding-use-cluster-munitions-georgia.

[141]
For a full discussion of international humanitarian law violations by Georgia
in the August 2008 conflict, see Human Rights Watch, Up in Flames.

[147]
An explosive remnant of war also caused an injury in Tirdznisi. It may have
been caused by an unexploded submunition, but since Human Rights Watch could
not definitively determine that, the casualty is not included in the total
number. On August 24, Shota Kaidarashvili, 57, went to his garden to water and
take care of his crops. When he started digging in the ground, something
exploded. He suffered multiple wounds to the head, requiring doctors to remove
part of his skull. He also had an open fracture of his lower right leg, and his
right forearm was amputated. He arrived at the Gori military hospital at 10:45
a.m. that day in a coma, and doctors said he was in critical condition with a
low chance of survival. Human Rights Watch interview with Shota Lapachi, Gori,
August 24, 2008.

[150] Another
casualty occurred in Brotsleti on the afternoon of September 9. It was likely
from a submunition dud given the extensive contamination in the town, but it
could not be definitively proved because the victim did not see what exploded.
Therefore Human Rights Watch has not included the victim in its total casualty
figures. On that afternoon, Giorgi Chinchriki, 70, went to his field in
Brotsleti to collect plums, which were hidden on the ground by tall grass. As
he was cutting the grass to get to them, something exploded. Describing his
injuries, he said, “I was hurt in my lip and lost a tooth. I also had 17
pieces of shrapnel in my right leg and one in my left leg. There were also some
in my stomach and arm.” After he was injured, he walked to the main road
where neighbors came to rescue him. His cousin took him to the GorMed Hospital
in Gori, where he spent one week before being transferred to a hospital in
Tbilisi. Chinchriki saw several submunition duds in his son's field, which is
on the way to his field. He said some had white ribbons and some red. Human
Rights Watch interview with Giorgi Chinchriki, Brotsleti, October 16, 2008.

[163]
Ministry of Foreign Affairs of Georgia, “Different Types of Heavy
Conventional Weapons Have Been Indiscriminately Used against Civilian
Population and Infrastructure of Georgia by Russian Armed Forces,” August
15, 2008, http://georgiamfa.blogspot.com/2008/08/russians-use-cluster-munitions-against.html.
See“The War in Georgia: A Caucasian Journey,”
The Economist, August 21, 2008,
http://www.economist.com/world/europe/displaystory.cfm?story_id=11986018
(accessed November 16, 2008); “Georgia Demands EU, NATO to Confirm Use of
Cluster Bombs by Russia,” Trend News Agency (Baku), August 16,
2008,
http://trend.smart.az/index.shtml?show=news&newsid=1270971&lang=EN
(accessed November 16, 2008); Neil Cavuto, “Interview with
Georgian President Mikhail Saakashvili,” FOX News, August 18, 2008, http://www.foxnews.com/story/0,2933,405722,00.html
(accessed November 16, 2008). See also “Preconference of President of
Georgia Mikheil Saakashvili and US State Secretary Condoleezza Rice,”
Office of the President of Georgia news release, August 15, 2009, http://www.president.gov.ge/?l=E&m=0&sm=2&st=10&id=2712
(accessed April 1, 2009).

[164]
“Preconference of President of Georgia Mikheil Saakashvili and US State
Secretary Condoleezza Rice,” Office of the President of Georgia news
release.

[169]
Kutelia also noted that the contract was for 85 percent of the M85s to have
white ribbons, yet the majority of the duds found by Human Rights Watch had red
ribbons. As mentioned earlier, Human Rights Watch has not determined a
difference between models with white and red ribbons. The deminers it
interviewed did not know either. Human Rights Watch interview with Joseph
Huber, then program manager, Norwegian People’s Aid, Tbilisi, October 14,
2008. The Georgian Ministry of Defense told Human Rights Watch it knew of
“no technical difference” between the white- and red-ribboned
models. Response of Georgian Ministry of Defense to Human Rights Watch
Questions, February 12, 2009.

[190]
According to the Georgian Ministry of Defense, its deminers cleared 479
submunitions and some cluster munition casings between October 10 and 21, 2008.
The clearance took place in the following towns and villages in the Gori and
Kareli districts: Abisi, Akhaldaba, Avnevi, Brotsleti, Dzlevijvari, Ergneti,
Kvemo Khviti, Kvemo Nikozi, Meghvrekisi, Pkhvenisi, Tirdznisi, Tortiza, and
Zemo Nikozi. “Annex 1: Information Regarding the Demining of Cluster
Munitions Dropped by Russian Side,” attachment to email communication from
David Nardaia, head, Analytical Department, Ministry of Defense of Georgia, to
Human Rights Watch, November 18, 2008. Although the ministry’s document refers
to the submunitions as Russian, it does not break down the submunitions by
type, and Human Rights Watch found evidence of Georgian M85s in several of the
towns listed. Furthermore, a Georgian officer reported that his deminers
cleared many M85s, suggesting that some of the submunitions counted were in
fact Georgian. See Human Rights Watch interview with high-ranking Georgian
officer of engineering brigade, October 21, 2008.